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LAW  BOOKS 


FOR   SALE    BIT   JOHN    GRIGG, 

No.  9?  North  Fourth  Street,  Philadelphia. 


Abbott  on  Shipping,  by  Judge  Story' 
Addison's  Pennsylvania  Reports  and  Charges 
American  Digest,  4  vols. 

Pleader's   or  Lawyer's   Guide,  by 

Heuning,  2  vols. 
American  Precedents,  by  Oliver,  new  ed. 
Angel  on  Adverse  Enjoyment 
Angel  on  Water  Courses 
Anthon's  Nisi  Prius  Reports 

Appendix  to  Tidd's  Practice 

Archbold's  Forms  of  Indictment 

Archbold's  Practice  of  Court  of  King's  Bench 

Forms,  a  new  work 

Criminal  Pleading  and  Evidence 

Civil  Pleading  and  Evidence 

Atkyn's  Reports,  3  vols,  by  Sanders 
Azuni's  Maritime  Law,  2  vols. 
Bacon's  Abridgment,  notes  by  Wilson,  7  vols. 
Backus's  Digest  of  Laws  relating  to  Sheriff, 

2  vols. 
Ballantine  on  the  Statute  of  Limitations 
Barton's  Equity 

Barnewall  and  Alderson's  Reports,  4  vols. 
Bayard's  Peake's  Evidence 
Bayley's  Digested  Index,  3  vols. 
Bay's  South  Carolina  Reports,  2  vols. 
Beames's  Pleas  in  Equity,  notes  by  Halsted ' 

Ne  exeat  Regno 

Beccai-ia  on  Crimes 

Bee's  S.  C  Admiralty  Reports 

Higelow's  Digest,  new  ed. 

Bingham  on  Infancy  and  Coverture 

Blackstone's  (Henry,)  Reports,  2  vols. 

Commentaries  by  Christian,  Arch- 
bold,  and  Chitty,  2  vols.  8vo. 

Blake's  New- York  Chancery  Practice 

Bosanquet  and  Puller's  Reports,  5  vols,  by  Day 

Bradby  on  Distress 

Brackenridge's  Law  of  Miscellanies 

Bridgeman's  Dig-ested  Index,  3  vols. 

Browne's  (P.  A. )  Pennsylvania  Reports,  2  vols. 

Brockenbrough  and  Holmes's  Virginia   Cases 

Burr's  Trial,  2  vols. 

Butler's  Horae  Juridicx 

Burlamaque's  Nat.  8c  Pol.  Law,  2  vols. 

CASES  IN  CHANCERY,  a  new  edition 

This  work  is  considered  by  all  the  Bar  to  be  a  work  of 

great  value.     It  is  the  first  American  edition. 

Caines's  New  York  Term  Reports,  3  vols. 

Cases  in  Error,  2  vols,  in  one 

Caldwell  on  Arbitration 

Call's  Virginia  Reports,  3  vols. 

Cameron  and  Norwood's  Reports 

Campbell's  Nisi  Prius  Reports,  4  vols. 

CHITTY  ON  CONTRACTS.  A  New  and 
Practical  Treatise  on  the  Law  of  Contracts 
not  under  Seal,  and  upon  the  usual  Defences 
to  Actions  thereon,  with  Corrections  and  Ad- 
ditional References  ;  by  a  Member  of  the 
Massachusetts  Bar,  in  1  vol.  8vo. 

Chitty's  Criminal  Law,  3  vols   by  Peters 

— — — -  Pleadings,  3  vols,  new  ed, 


chitty  on  Bills  of  Exchange,  &.c. 
Clerk's  Assistant 

Clancey  on  the  Rights  of  Married  Women 
Coleman  and  Caine's  New  York  Cases 
Comyns  on  Contracts,  new  edition 
Cooper's  (Judge,)  Institutes  of  Justinian 

(George,)  Chancery  Cases,  with  notes 


by  Hoffman 
Cooper's  (George,)  Equity  Pleading 
Cowper's  Reports,  2  vols. 
Crown's  Circuit  Companion 
Cruise  on  Real  Property,  new  edition,  4  vols. 
Coke  on  Lyttleton,  by  Thomas,  3  vols. 
Coke's  Reports,  7  vols, 
abridged 


Coxe's  new  Digest,   Supreme  Court,  Circuit 

Cts.  and  District  Cts.  of  the  United  States. 
Comyn's  Digest,  8  vols,  new  ed. 
CASES  decided  in  the  SUPREME  COURT 
of  the  United  States,  from  the  organization 
of  the  Court  at  August  term  1791,  to  Janu- 
ary term  1828.  Edited  by  Richard  Peters, 
Counsellor  at  Law,  and  Reporter  of  the  De- 
cisions of  the  Supreme  Court  of  the  United 
States. 

This  work  is  intended  to  contain  the  opinions  of  the 
Supreme  Court,  in  the  language  of  the  Judges,  in  every 
case  decided  in  that  Court  from  the  establishment  of  thj 
Government  of  the  United  States,  to  the  commence- 
ment of  Mr.  Peters'  Reports  at  January  Term  1828.  The 
reported  decisions  in  the  Circuit  and  District  Courts  of 
the  United  States,  upon  similar  points,  are  also  collected 
and  digested  in  the  work,  as  notes  ;  and  abstracts  of 
those  Casts,  and  also  of  the  collateral  decisions  of 
the  Supreme  Court,  are  given,  so  that  the  Profession:! I 
Gentleman  and  the  Student,  will  be  in  possession  of  all 
the  adjudicated  Law  of  the  Courts  of  the  United  States, 
in  an  authoritative,  condensed,  and  arranged  form. 

The  work  will  be  contained  in  not  more  than  six  vo- 
lumes ;  and  the  first  volume  will  be  published  early  in 
November. 

Every  Gentleman  of  the  American  Bar,  will  at  one- 
discover  the  great  advantage  of  the  above  work,  in  the 
saving  of  expence  and  trouble,  to  the  Profession. 

Dunlap's  Practice  of  N.  York,  2  vols. 

Duponceau  on  Jurisdiction 

Durnford's  and  East's  Reports,  4  vols,  new  ed. 

East's  Reports,  by  Day,  16  vols. 

Espinasse  on  Penal  Actions 

Evans  on  Pleadings,  a  new  work 

Fell  on  Mercantile  Guarantee,  notes  by  Walker 

Fessenden's  Law  of  Patents 

Field's  Analysis  of  Blackstone 

Francis's  Maxims  in  Equity,  by  Hening 

Fearne  on  Remainders 

Gordon  on  Pennsylvania  Law  of  Decedents 

Hammond's  Treatise  on  Nisi  Prius 

Digest  of  Equity  Reports 

on  Parties  to  Action 


Harris  and  M'Henry  's  Maryland  Reports,  4  vols. 
Mall's  Digest  of  Virginia  Reports 
Halsted's  New-Jersey  Reports,  3  vol.-. 
Wardress's  Reports 
Henninff's  Justice 


Hobart's  Reports,  new  ed. 

Holt's  Law  of  Libel 

Hopkins'  (Jhancery  Reports,  vol.  1. 

Hovenden's  Supplement  to  Vesy  Jr.  Reports 

2  vols.  8vo. 

Mullock's  Law  of  Costs 

Ingersoll's  Abridgment  Laws  of  the  U.  States 

Jacob's  and  Walker's  Chancery  Reports,  2  vols. 

.lacobson's  Sea  Laws 

Jeremy's  Law  of  Carriers,  &c. 

Johnson's  N.  York  Chancery  Reports,  7  vols. 

Digest  of  N.  York  Reports,  2  vols.  8vo. 

JONES  ON  BAILMENTS,  a  new  edition. 
An  Essay  on  the  Law  of  Bailments,  by  Sir 
YVm.  Jones,  Kt.  3d.  London  edition,  with 
Notes  and  References  on  the  subject  of  Car- 
riers, Inn-Keepers,  Warehouse  men,  and 
other  Bailees,  by  Wm.  Nichols,  Esq.  With 
additional  Notes  and  References  to  Ameri- 
can Decisions,  by  Wm.  llalsted,  Jr.  Esq.  In 
I  vol.  8vo. 

Johnson's  New  York  Reports,  20  vols. 

Cases,  3  vols. 

Kent's  Commentaries  on  American  Law,  3  vols. 

Laws  of  United  States,  3  vols.  Story's  Ed. 

Law  of  Lien,  by  Whittaker 

Lilly's  Entries,  2  vols. 

1  .ivermore  on  Agency,  2  vols. 

Long  on  Sales  of  Personal  Property 

Laws  on  Pleading  in  Assumpsit,  with  notes  by 
,1 .  Story 

Martin  on  Executors 

Maddock's  Chancery,  2  vols,  new  edit. 

Manning's  Digest  of  Nisi  Prius  Reports 

Marten's  Law  of  Nations 

Marshall  on  Insurance;  by  Coridy,  2  vols. 

Mantis  on  Hills  of  Exchange. 

Merrivale's  Reports,  3  vols. 

Mil  ford's  Pleadings. 

Montagu  on  Set-Off.     Montagu  on  Lien 

on  Partnership,  2  vols. 

Montefiorc's  Notarial  Precedents,  by  Riddle. 

Moore's  Index  to  Term  Reports,  2  vols. 

Munford's  Yirginia  Reports,  6  vols. 

Murphy's  North  Carolina  Reports 

New  land's  Chancery  Practice,  2  vols,  new  ed. 

•NYwland  on  Contracts 

Noy's  Maxims,  by  W.  W.  Ilcning 

Oliver  on  Conveyancing,  new  edit. 

Pale]  on  Agency 

I'eakc's  Evidence,  by  Norris 

Peere  William's  Chancery  Reports,  3  vols. 

Perkins  on  Conveyancing 

!  ters'  Reports  of  the  Supreme  Court  United 
States,  2  vols,  a  new  work. 

Phillips  on  Evidence,  2  vols. 

Pothier  on  Obligations,  bj  Evans,  2  vols. 

Powell  on  Contracts.      Powell  on  Devises 

-!■  on  Powers 

Phillips  on  Insurance 

Pic  keririg's  Reports,  5  vols. 

Preston  on  Estates,  a  new  work 

Randall's  Peake 

Revised  Code  of  North  Carolina 

Randolph's  Virginia  Reports,  5  vols. 

Rawle  on  the  Constitution,  new  ed. 

Read's  Precedents.     Read's  Pleader's  Assistant 

Roberts  on  Frauds,  Wills,  and  Codicils,  ike. 

on  Fraudulent  Conveyancing 

RopCT  on  Wills,  Legacies,  &Ci 

■ on  Law  of  Husband  and  \\  ife,  2  vols. 

on  Legacies,  2  vols,  new  ed. 

Salkeld's  Reports,  b)  Evans,  3  vols. 


SAUNDERS'  REPORTS,  in  3  vols.  8vo. 
The  Reports  of  the  most  learned  Sir  Ed- 
mund Saunders,  Knt.  late  Lord  Chief  Justice 
of  the  King's  Bench,  of  several  Pleadings 
and  Cases  in  the  Court  of  King's  Bench. 
Edited,  with  notes  and  references  to  the 
Pleadings  and  Cases,  by  John  Williams,  one 
of  his  Majesty's  Serjeants  at  Law.  The 
fifth  edition.  With  references  to  the  later 
decisions.  By  John  Patteson,  of  the  Middle 
Temple,  and  Edward  Vaughan  Williams,  of 
Lincoln's  Inn,  Esqrs.  Barristers  at  Law.  The 
4th  American,  from  the  5th  London  edition. 

This  new  edition  of  1828,  contains  one  third  more 
matter  than  any  previous  one. 

We  all  know  the  great  learning,  wisdom,  and 
integrity  of  the  author,  and  do  for  the  com- 
mon good  allow  and  approve  the  printing  anil 
publishing  of  this  book,  intitled,  Les  Reports 
du  tres  erudite  Edmund  Saunders,  Chevalier, 
&c. — Jeffreys.  Tho.  Jones.  W.  Montague. 
Edward  Atkins.  W.  Gregory.  J.  Charleton. 
Creswell  Levinz.  T.  Street.  Fra.  Withins 
Ric.  Holloway.    T.  Walcot.    Ro.  Wright 

Saunders  on  Pleading,  2  vols. 

Say's  Political  Economy,  new  edit. 

Schoales  and  Lefroy's  Irish  Chancery  Reports 

Selwyn's  Nisi  Prius,  by  Wheaton,  2  vols. 

Sellon's  Practice  Courts  of  C.  P.  &  K.  B.  2  vols. 

Sergeant  on  Attachments 

Sheppard's  Touchstone,  3  vols,  in  2 

South  Carolina  Constitutional  Reports,  2  vols. 

Starkie's  Nisi  Prius  Reports,  2  vols. 

Criminal  Pleading 

on  Evidence,  3  vols,  new  edit. 

—  on  Slander,  new  edit. 


Stearne  on  Real  Actions 
Stevens  on  Civil  Pleading 
Stubb's  Crown  Circuit  Companion 
Sugden  on  Law  of  Vendors,  new  ed. 
-  on  Powers 


Swanston's  Chancery  Reports,  3  vols. 

Swift's  Digest  &  Evidence 

Taylor's  North  Carolina  Reports,  3  vols. 

Taunton's  Reports,' 8  vols. 

Tomlin's  Index  to  Crown  Law 

The  Federalist  on  the  Constitution 

The  6th  vol.  of  Espinasse's  Reports 

Tidd's  Practice,  2  vols,  new  ed. 

Troubat's  and  Haley's  Notes  on  Practice 

Tucker's  Blackstone,  5  vols. 

The  Law  of  Executors  and  Administrators. 
By  Sir  Samuel  Toller,  Knight,  late  Advo- 
cate General  at  Madras.  With  considera- 
ble additions  by  Francis  Whitmarsh,  Esq.  of 
Cray's  Inn,  Barrister  at  Law.  With  Notes 
and  References  to  American  Authorities,  by 
E.  D.  Ingraham. 

The  above  work  is  not  only  absolutely  necessary  for 
every  gentleman  of  the  Bar,  but  will  be  found  a  very  va- 
luable guide  to  every  individual  who  is  left  as  executor  or 
administrator.  The  copious  notes  added  to  this  edition 
by  the  American  editor,  render  it  preferable  to  any  pre 
vious  edition. 

Verplanck  on  Contracts 
Woodfall's  Landlord  and  Tenant 
Washington's  Reports,  2  vols. 
Yeates's  Pennsylvania  Reports,  4  vols. 
Velverton's  Reports,  by  Metcalfe. 

Ml  the  new  Law  'fjp&ts  for  sflJ  as  soon  as 
published. 


THE 


LAW    OF    EXECUTORS 


AND 


ADMINISTRATORS. 


By  Sir  SAMUEL  TOLLER,  Knight, 

III 
LATE  ADVOCATE  GENERAL  AT  MADRAS. 


WITH  CONSIDERABLE  ADDITIONS, 

By  FRANCIS  WHITMARSH,  Esq. 

op   unit's    IMS,    BAKHISTEB    AT   LAW. 


■—(JO—»» 


Sorte  suprema 


Permutat  Dominos,  et  cedit  in  altera  jura.     Hon. 

— -OtH- 

THIRD  AMERICAN,  FROM  THE  SIXTH  LONDON  EDITION 

WITH    REFERENCES    TO    THE    STATUTES    OF 

PENNSYLVANIA,  AND  THE  PRINCIPAL 

AMERICAN  DECISIONS. 

BY  EDWARD   D.   INGRAHAM. 


PUBLISHED    BY    JOHN    GRIGG, 

No.  9,  North  Fourth  Street. 

1829. 


T 

rr?g7e. 


Eastern  District  of  Pennsylvania,  to  wit  ? 

BE  IT  REMEMBERED,  That  on  the  fourteenth  day  of  August,  in 
the  fifty-fourth  year  of  the  Independence  of  the  United  States  of  America, 
A.  D.  1829,  John  Grigg,  of  the  said  district,  hath  deposited  in  this  office 
the  title  of  a  book,  the  right  whereof  he  claims  as  Proprietor,  in  the  words 
following,  to  wit : 

"  The  Law  of  Executors  and  Administrators.  By  Sir  Samuel  Toller,  Knight, 
late  Advocate  General  at  Madras.  With-considerable  Additions,  by  Fran- 
cis Whitmarsh,  Esq.  of  Gray's  Inn,  Barrister  at  Law. 

Sorte  suprema 

Permutat  Dominos,  et  cedit  in  altera  jura.     Hon. 
Third  American,  from  the  Sixth  London  edition:  with  References  to  the 
Statutes  of  Pennsylvania,    and  the  principal  American  Decisions.     By 
Edward  D.  Ingraham." 

In  conformity  to  the  Act  of  the  Congress  of  the  United  States,  entitled, 
"  An  Act  for  the  encouragement  of  learning,  by  securing  the  copies  of  maps, 
charts,  and  books  to  the  authors  and  proprietors  of  such  copies  during-  the 
times  therein  mentioned:"  and  also  to  the  Act,  entitled,  "An  Act  supple- 
mentary to  an  Act,  entitled,  '  An  Act  for  the  encouragement  of  learning, 
by  securing  the  copies  of  maps,  charts,  and  books  to  the  authors  and  propri- 
etors of  such  copies  during  the  times  therein  mentioned,'  and  extending 
the  benefits  thereof  to  the  arts  of  designing,  engraving,  and  etching  histo- 
rical and  other  prints." 

D.  CALDWELL, 
Clerk  of  the  Eastern  District  of  Pennsylvania 


Printed  by  Mifflin  &  Tarry, — Locust  Street 


'- 


ADVERTISEMENT 


SIXTH  EDITION. 


In  this  Edition  of  6i  The  Law  of  Executors  and 
Administrators/'  the  same  plan  has  been  pursued  as 
in  the  preceding  Editions,  viz.  to  make  no  alteration 
in  the  language  of  the  original  Work,  and  to  introduce 
the  variation  in  the  law  by  way  of  addition  or  expla- 
nation. 

Lincoln 's  Inn,  May  1S27. 


4 


GG9725 


PREFACE 


TO 


THE    FIRST    EDITION, 

The  subject  of  the  following  treatise  comprehends 
a  great  variety  of  points,  in  which  the  public  are 
very  generally  interested.  In  the  ordinary  course 
of  human  affairs,  almost  all  persons  at  some  period 
of  their  lives  are  called  to  exercise  the  office  of  a 
personal  representative,  or  to  transact  business  with 
such  as  are  invested  with  it.  An  attempt,  therefore, 
to  unfold  its  nature,  to  describe  its  rights,  and  to 
point  out  its  duties,  as  there  is  no  modern  work  of 
any  reputation  which  professes  exclusively  to  treat 
of  these  topics,  will,  I   persuade  myself,  be  regarded 

with  favour. 

• 

The  book  of  the  most  distinguished  merit  on  this 
subject,  is  that   which  is  entitled,    " :Thc   Office,  and 


vi  PREFACE  TO  THE  FIRST  EDITION. 

Duty  of  Executors ;"  and  which,  although  it  bear 
the  name  of  Thomas  Wentworth,  is  now  generally 
ascribed  to.  Mr.  Justice  Dodderidge.  It  was  first 
published  anonymously  in  the  year  1641  :  to  the 
third  edition,  printed  in  the  same  year,  was  prefixed, 
for  the  first  time,  the  fictitious  name  I  have  just 
mentioned.  The  eighth  edition  appeared  in  1689, 
to  which  Chief  Baron  Comyns,  in  his  Digest,  con- 
stantly refers.  In  1703,  the  ninth  edition  was  publish- 
ed, with  a  supplement  by  H.  Curzon":  the  twelfth 
edition  was  published  in  1762,  with  references  by  a 
Gentleman  of  the  Inner  Temple  ;  and  in  1774,  the 
thirteenth  and  last  edition,  by  Mr.  Serjeant  Wilson. 

Of  the  original  work  it  is  no  undue  praise  to 
assert,  that  it  is  worthy  the  pen  of  so  learned  an 
author.  It  is  calculated  to  engage  the  attention  of 
the  reader,  and  contains  very  sound  principles,  and 
luthentic  information.  At  the  same  time  it  must 
be  confessed,  that  it-  is  often  uncouth,  and  some- 
times obscure  in  its  language:  altogether  inarti- 
ficial in  its  method ;  and  of  necessity  defective  in 
regard  to  later  adjudications  :  which  at  law  are 
numerous  and  important;  and  in  equity  constitute 
a  new  system."  It  is  also  silent  respecting  the  office 
of  an  administrator.  Nor  is  it  much  indebted  to  its 
pal  editors.     The   supplement,  as  i(    is  called,   is 


PREFACE  TO  THE  FIKST  EDITION.  Vll 

a  mere  collection  of  cases,    without    order,' and  with 
out   precision. 

Under  these  circumstances  I    was   induced  to   com- 
pile  the    present   treatise.      The   subject    appeared 
to  me  capable    of  an   arrangement  more  natural   and 
distinct   than  any  which   has  hitherto  been   adopted. 
Such  arrangement  I   have  endeavoured  to  form,  and 
to   preserve.     It   has   also   been   my  object  to  com- 
prise the  multifarious  matter,  of  which  I  have  been 
treating,  within  as  narrow  limits   as   it  would  admit ; 
and  to  express  myself  at  once  with  brevity  and  with 
clearness.     The  authorities   I   have  stated  very   fully 
in  the  margin,   with  a  view  of  facilitating  farther  re- 
searches  into  points  of  a   nature  so   interesting,    and 
of  so  perpetual  a   recurrence.     And  it  will  afford  me 
much  satisfaction,   if  I   shall  have  contributed  to   ex- 
tend so  useful  a  species  of  knowledge. 


TABLE 


OF    THE 


CONTENTS. 


BOOK  I. 

Of  the  appointment  of  executors  and  administrators. 

CHAP.  I. 

Page 
Of  wills  and  codicils — who  may  make  them — who  not 
— how  they  are  annulled — or  revoked — how  repub- 
lished -  -  -  -  -  f      1 

CHAP.  II. 

Of  the  appointment  of  executors. 
Sect.  i.     Who  may  be  an  executor— who  not — how 

may  be  appointed  -  -     33 

Sect.  ii.     Of  an  executor  de  son   tort— how  a  party 

becomes  so       -  -  -     o9 

Sect.  III.     Of  the  renunciation  or  acceptance  of  an  exe- 
cutorship -  -  -     43 
b 


A    TABLE    OF    THE   CONTENTS. 

Page 
Sect.  iv.     Of  an  executor  before  the  probate  of  the 

will  -  -  -46 

Sect.    v.     Of  the   probate — jurisdiction  of  granting 

the  same — of  bona  notabilia  -     49 

Sect.  vi.     Of  the  probate  of  nuncupative  wills  -     59 

Sect.  vii.     Of  the  probate  of  the  wills  of  seamen  and 

marines  -  -  -     60 

Sect.  viii.  Of  the  probate  under  special  circumstances     65 
Sect.  ix.     Of  caveats,  revocation  of  probates,  and  ap- 
peals '  -  -  -     72 
Sect.     x.     The  effect  of  a  probate — loss  of  the  same 
— what  is  evidence  of  probate — effect  of 
its  revocation                        -                    -     75 


CHAP.  III. 

Of  the  appointment  of  administrators. 

Sect.  i.  Of  general  administrations — origin  thereof 
— who  entitled — of  consanguinity 

Sect.  ii.  Of  the  analogy  of  administrations  to  pro- 
bates -    '  -  -     94 

Sect.    iii.    In  regard  to  the  acts  of  a  party  entitled 

previous  to  the  grant  -  -     95 

Sect.  iv.     Practice  in  regard  to  administrations         -     96 

Sect.    v.     Of  special  and  limited  administrations      -     98 

Sect.  vi.     Of  administrations  to  intestate  seamen  and 

marines  -  -  -  109 

Sect.  vii.  Of  administrations  in  case  of  the  death  of 
the  administrator,  or  of  the  executor, 
intestate  -  -  -   114 

Sect.  viii.     How  administration  shall   be    granted — 
when  void — when  voidable — of  repeal-  t 
ing    the    same — how    a    repeal     affects 
•  mesne  acts  -  -   1 19 


A    TABLE    Ol'    THE    CONTENTS.  Xl 


BOOK  II. 

Of  the  rights  and  interests  of  executors  and  adminis- 
trators. 


CHAP.  I. 

Page 
Of  the  general  nature  of  an  executor's  or  administra- 
tor's interest— Distribution  of  the  subject  with  re- 
ference to  the  different  species  of  the  deceased's  pro- 
perty -  -  -  -133 


CHAP.   II. 

Of  the  interest  of  an  executor  or  administrator  in  the 
chattels  real  and  personal. 

Sect.  i.     Of  his  interest  in  the  chattels  real  -   139 

Sect.  ii.     Of  his  interest  in  the  chattels  personal,  ani- 
mate, vegetable  and  inanimate  -   146 


CHAP.   III. 

Of  the  interest  of  the  executor  or  administrator  in 
such  of  the  chattels  as  were  not  in  the  deceased's  pos- 
session at  the  time  of  his  death. 

Sect.  i.     Of  his  interest  in  chosen  in  action  -    157 

Sect.  ii.  Of  interests  vested  in  him  by  condition,  by 
remainder,  or  increase,  by  assignment,  by 
limitation,  and  by  election  -   '61 


Xli  A    TABLE    OF    THE    CONTENTS. 


CHAP.  IV. 

Of  chattel  interests  which  do  not  vest  in  the  executor 
or  administrator. 

Sect.'  i.  Of  chattels  real  which  go  to  the  heir  ■,  and 
also  touching  money  considered  as  land, 
and. land  as  money  -  -  176 

Sect.  ii.     Of  chattels  personal  which  go  to  the  heir ; 

— and  herein  of  heir-looms  -  192 

Sect.  iii.     Of  chattels  which  go  in  succession  -  201 

Sect.  iv.  Of  chattels  which  go  to  a  devisee,  or  re- 
mainder-man;— and  herein  of  emble- 
ments, and  heir-looms         -  -  203 


CHAP.  V. 
Of  the  chattels  which  go  to  the  widow. 

Sect.  i.  Of  the  chattels  real  which  go  to  the  widow; 
—and  herein  also  of  such  chattels  real 
as  belong  to  the  surviving  husband         -  212 

Sect.  ii.  Of  the  chattels  personal  which  go  to  the  wi- 
dow;— and  herein  of  such  personal  chat- 
tels of  the  wife  as  go  to  the  surviving 
husband  -  *  -216 

Sect.  iii.     Of  the  wife's  paraphernalia  -  229 

CHAP.  VI. 

Of  the  interest  of  a  donee  mortis  causa  -  -  233 

CHAP.  VII. 

How  effects,  ivhich  an  executor  lakes  in  that  character, 
may  become  his  own  -  -  23t> 


A  TABLE  OF  THE  CONTENTS.  Xlll 


CHAP.  VIII. 

Page 
Of  the  interest  of  an  administrator,  general  and  special 
— of  a  married  woman  executrix,  or  administra- 
irix — of  several  executors  or  administrators — of 
the  executor  of  an  executor — of  an  administrator 
tie  bonis  non — of  an  executor  de  son  tort.  241 


BOOK  III. 

Of  the   powers  and  duties   of  executors   and   admi- 
nistrators. 


CHAP.  I. 

Of  the  funeral — of  making  an  inventory — of  collecting 
the  effects. 

Sect.  i.  Of  the  funeral           -                     -  -  245 
Sect.  ii.  Of  the  making  of  an  inventory  by  the  exe- 
cutor or  administrator             -  -  247 
Sect.  iii.  Of  his  collecting  the  effects  -  254 


CHAP.   II. 

Of  his  payment  of  debts  in  their  legal  order- 

Sect.     i.    Of  debts  clue   to  the  crown  by  record,  or 

specialty — of  certain  debts  by  particular 

statutes  ...  258 

Sect.  ii.    Of  debts  of  record  in  general — of  judgments  ; 

— and  herein  of  decrees — of   statutes  and 

recognizances — of  docquctting  judgments  262 


XIV  A  TABLE  OF  THE  CONTENTS. 

Page 
Sect.iii.    Of  debts  by  specialty; — and  herein  of  rent — 

of  debts  due  by  simple  contract  -  278 

Sect.  iv.  Of  a  creditor's  gaining  priority  by  legal  or 
ecmitable  process — of  notice  to  an  execu- 
tor of  debts  by  specialty  or  simple  con- 
tract -  -  -  288 

CHAP.  III. 

Of  an  executor's  right  to  retain  a  debt  due  to  him  from 

the  testator — under  what  limitations.  -  295 


CHAP.  IV, 

Of  the  payment  of  legacies. 

Sect.  i.  Legacy,  what — who  may  be  legatees — who 
not — legacies  general  and  specific — lapsed 
and  vested  ...  299 

Sect.  ii.  Of  the  executor's  assent  to  alegacy — on  what 
principle  necessary — what  shall  amount 
to  such  assent— assent  express,  or  implied  . 
— absolute  or  conditional — has  relation  to 
the  testator's  death — when  once  made, 
irrevocable — when  incapable  of  being 
made  ...  306 

Sect.  iiL  When  <a  legacy  is  to  be  paid — to  whom — of 
payment  in  the  case  of  infant  legatees — 
of  a  conditional  payment  of  a  legacy 
— of  payment  of  interest  on  legacies — 
of  such  payment  wh^re  the  legatees  are 
infants — of  the  rate  of  interest  payable 
on  legacies  -  -  3 12 

Sect.  iv.    Of  the  ademption  of  a  legacy  -  329 

Sect.    v.    Of  cumulative  legacies  -  -  334 

Sect-   vi.     Of  a  legacy's  being  i»"  satisfaction  of  a  debt  336 
Sect.  vii.    Of  the  abatement  of  legacies-^of  the  refund- 
ing of  legacies— of  the  residuum  -  339 


A  TABLE  OF  THE  CONTENTS.  XV 

Page 
Sect.  viii.  Of  an  executor's  being  legatee  ;— and  herein 

of  his  assent  to  his  own  legacy  -  344 

Sect.  ix.  Of  the  testator's  appointing  his  debtor  exe- 
cutor— when  the  debt  shall  be  regarded 
as  a  specific  bequest  to  him— when  not  347 
Sect.  x.  Of  the  residue  undisposed  of  by  the  will, 
when  it  shall  go  to  the  executor — when 
not  -  -  -  351 

CHAP.  V. 

Of  the  incompetency  oj  an  infant  executor — of  the  acts 
of  an  executor  durante  minoritate — of  a  married 
woman  executrix— .of  co-executors— of  executor  of 
executor — of  executor  de  son  tort  -  -  35G 

CHAP.  VI. 

Of  distribution. 

Sect.     i.  Of  distribution  under  the  statute;  and  herein 

of  advancement  -  -  369 

Sect.    ii.  Of  distribution  by  the  custom  of  London     -388 
Sect.  iii.  Of  distribution  by  the  custom  of  York — and 

of  Wales  -  -  -  400 

CHAP.  VII. 

Of  the  powers  and  duties  of  limited  administrators— of 
joint  administrators  -  -  -  404 

CHAP.  VIII. 

Of  assets  as  distinguished  into  real  and  personal,  legal 
and  equitable — of  marshalling  assets  -  409 

CHAP.  IX. 

Of  a  devastavit  -  •  .   -  424 


\VI  A  TABLE  OF  THE  CONTENTS. 


CHAP.  X. 

Of  remedies  for  and  against  executors  and  administra- 
tors at  law  and  in  equity,  8?c. 

Page 

Sect.     i.  Of  remedies  for  executors  and  administrators 

at  law         *        -  -  -  431 

Sect.   ii.  Of  remedies  for  executors  and  administrators 

in  equity  ...  454 

Sect.  iii.  Of  remedies  at  law  against  executors  and  ad- 
ministrators -  -  458 

Sect.  iv.  Of  remedies  against  executors  and  administra- 
tors in  equity  -  -  479 

Sect.  v.  Of  remedies  against  executors  and  adminis- 
trators in  the  ecclesiastical  court  -  489 


APPENDIX. 

Duly  on  probates  and  administrations  -  49S 

Duty  on  legacies        -  -  -505 


TABLE 


OASES     CITED. 


- »  t^v©  55  ©^4**«*— 


A. 

Page 
Abury  v.  Miller  19 

Abney  v.  Miller  22.  27.  306 
Abram  v.  Cunningham  120. 
127,  128.  347 
102 
347 
55 
114.  407 
358 
308.  320 
427 
222 


Abbott  v.  Abbott 
Abbot  v.  Massie 
Adams  v.  Savage 
Adams  v.  Buckland 
Adair  v.  Shaw- 
Adams  v.  Peirce 
Adye  v.  Feuilleteau 
Adams  v.  Cole 
All  Souls'  Coll.  v.  Codring- 

ton  2.  301 

Allen  v.  Dundas  76,  77. 

128,129 
Allison  v.  Dickenson  120 

Aliens  v.  Andrews  122 

Alexander  v.  Alexander   318, 

319 
Aldrich  v.  Cooper  421 

Annandale,   Marchioness 

of,  ex  parte 
Angerstein  v.  Martin 
Ankerstein  v.  Clarke 
Andrews  v.  Brown 
Andrews  v.  Partington 


Andrew  v.  Clark 
Annand  v.  Honeywood 


190 
324 
241 
287 

326, 
327 
352 

394, 
395 


Page 
Ancaster,  Duke  of,  v.  May- 
er 417 
Apreece  v.  Apreece  301 
Appleton  v.  Doily              452 
Aplyn  v.  Brewer                484 
Ards  v.  Watkin  179 
Arnold  v.  Preston               300 
Arundell  v.  Trevill             434 
Ashburne  v.  M'Guire        172. 
300,  301.  303.  324.  330, 
331.  334 
Astley  v.  Powis                  269 
Ashton  v.  Ashton       301.  331 
Ashburnham  v.  Thomp- 
son                            480.  483 
Attorney-General  v.  Barnes  6 

v.  Vigor  21 

—  v.  Downing   22.  27 

— ■ v.  Baines  27 

v.  Hooker         117. 

352,  353 

v.  Milner  172 

v.  Parkin    303.  331 

v.  Harley  335 

■ —  v.  Beatson  328 

v.  Cockerell        328 

v.  Hudson  339 

v.  Robins  339,340. 

347 
Atcherly  v.  Vernon       25,  26 


Atkins  v.  Hill 


49 


XV  111 


TABLE  OF  CASES   CITED. 


Page 

Atkinson  adm.  v.  Baker  140. 

178.  190.  409 

r.  Lady  Barnard  99 


Atkinson 
Atkins  v. 
Atkinson 
Atkyns  v 
Atkins. v. 
Atkinson 
Audley  v 
Aubin  v. 
Auriol  v. 
Avelyn  \ 
Avliffe  v. 


Hiccocks 

v.  Webb 
.  Water ston 

Hill 

v.  Henshaw 
.  Audley 
Daly 

Thomas 
.  Ward 

Avliffe 


171 

337 
391 
464 
496 
1S2.  186 
200 
287 
301 
122 


Baillie  v.  Mitchell 

Baxter  v.  Dyer 

Banks  v.  Sutton 

Barnes  v.  Crowe  26 

Baxter  and  Bale's  Case 

Baden  v.Earl  of  Pembroke 

Baxter  v.  Burfield      151. 

Barker  v.  Parker 

Barlow  v.  Grant  171. 

Barnes  v.  Allen 

Baker  v.  Baker 

Bates  v.  Dandy 

Barclay  v.  Marshall 

Bank  of  England  v.  Mof- 
fat 

v.  Mor- 

rice 

Barker  v.  Dumeres 

Barksdale  v.  Gilliat 

Baugh  v.  Reed 

Badrick  v.  Stephens 

Barker  v.  Rayner 

Baillie  v.  Butterfield 

Barret  v.  Beckford 

Bagwell  v.  Dry 

Ball  v.  Smith  352. 

Bayley  v.  Powell 

Babingdon  v.  Greenwood 

Baldwin  v.  Church 

Byrne's  Case 

Ball  v.  Oliver 

Bath,  Earl  of,  v.  Earl  of 
Bradford 


19 
21 
,  27 
128 
142 
475 
167 
327 
171 
183 
223 
253 

255 

2S1 
290 
328 
329 
330 
333 
335 
337 
343 
373 
352 
391 
359 
363 
404 


Page 
Batson  v.  Lindegreen  412.414 
Bamfield  v.  Wyndham  117 
Bartholomew  v.  May  417 
v.Meredith  173 


Barker  v.  Talcot 
Bagot  v.  Oughton 
Baynham  v.  Matthews 
Barwell  v.  Parker  ' 
Barry  v.  Rush 
Balchen  v.  Scott 
Bastard  v.  Stoekwell 
Bagnall  v.  Stokes 
Bennet  v.  Lord  Tanker- 

ville 
Beckford  v.  Parnecott 
Beaumont  v.  Perkins 
Bell  v.  Timiswood 
Benyon  v.  Maddison 
Beck  v.  Rebow 
Beamond  v.  Long 
Bennet  v.  Davis 
Beard  v.  Beard 
Bearblock  v.  Read     267 
Beachcroft  v.  Beachcroft 
Bennet  v.  Whitehead 
Beckford  v.  Tobin 
Bell  v.  Coleman 
Benyon  v.  Benyon 
Beeston  v.  Booth 
Berry  v.  Usher 
Bennet  v.  Batchelor 
Beeton  v.  Dark  in 
Benson  v.  Bellasis 
Benson  v.  Maude 
Benyon  v.  Gollins 


425 
419 

440 
455 
464 
4S6 
490 
494 


25 
26,  27 
57 
90 
171 
197 
201 
226 
227 
404 
300 
306 
323 
329 
335 
339 
.  350 
350.  352 
382 
391.  393 
325 
358.  429 
472 
394 
431. 
472 


Beckford  v.  Beckford 
Berwick  v.  Andrews 

434 

Bettison  v.  Bromley  2 

Bennet  v.  Coker  440 

Belchier,  ex  parte  4S4 

Bindon's  Case  230 

Bilson  v.  Saunders     317.  323 
Billinghurst  v.  Speerman* 

279.  459 

v.  Walker       419 

426 


410  )  Bird  v.  Lockey 


TABLE    OF    CASES    CITED. 


XIX 


Page 
Birch  v.  Wade  320 

v.Baker  33  3 

Blackborough  v.  Davis        82. 
S4.   91.  103.   120,  121,  122. 
127.   129.   241.  297.    382. 
384,  385.  494 
Blackburn  v.  Davis  124 

Bligh  v.  Earl  of  Darnley  144. 
269.  420 
Blackburn  v.  Greaves         219 
Blm's  v.  Countess  of  Here- 
.  ford  222 

Blount  v.  Burrow  234 

Blaney  v.  Hendricks  287 

Blakeway  v.  Earl  of  Straf- 
ford 288 
Blandivell  v.  Loverdell  290 
Blandy  v.  Wedmore  337 
Blois  v.  Blois  305 
Blunden  v.  Barker    391.  398, 

399 
Blinkhorn  v.  Feast  354.  361 
Blankhard  v.  Galdy  416 

Blue  v.  Marshall'  429.  481 
Bovvers  v.  Littlevvood  22.  370. 
374.  382.  384 
Bollard  v.  Spencer  48.  439. 
467,468 
Bourne  v.   Dodson  134 

Bonafous  v.  Walker  437 

Body  v.  Hargrave  141 

Bolton  v.  Cannon  142 

Bolland  et  Ux.  Admx.  v. 

Spencer  152 

Boycott  v.  Cotton  172 

Bowles  v.  Poore  176 

Bond  v.  Simmons       220.  417 
Bosvil  v.  Brander  223 

Boone's  Case  250 

Bonny  v.  Ridgard  256 

Bothomly  v.  Lord  Fair- 
fax 276.278 
Bowker  v.  Hunter  361 
Bootlc  v.  Blundell  417 
Boyntun  v.  Boyntun  422 
Booth  v.  Holt  "440 
Boothsby  v.  Butler              467 


Pags 
Brydges    v.    Duchess    ot 

Chandos  \,  2.  21,  22,  23.2.3 
Broderick  v.  Broderick  2 
Brudenall  v.  Boughton    7.  15. 

19 
Bridgharm  v.  Frontee  12 

Brady  v.  Cubitt  '     15.  18 

Brocks  v.  Phillips  34 

Brandon  v.  Nesbitt  ibid. 

Bristow  v.  Towers  ibid. 

Broker  v.  Charter  41 

Briers  v.  Goddard  105,  404 
Brightman  v.  Keighley  162 
Brown  v.  Farndell  171.  341. 
386.  373 
Bradley  v.  Powell  172 

Brewin  v.  Brewin     173.  327 
Bristol,    Countess  of,    v. 

Hungerford  178.  284 

B"adish  v.  Gee  180 

Brooks   v.    Brooks  224 

Bragner  v.  Langmead        266. 

468 
Broome  v.  Monck  281 

Brooking  v.  Jenners  292.  474 
Britton  v.  Bathurst  292,  293 
B-onsdon  v.  Winter  301.  331 
Bridge  v.    Abbot  304 

Brown   v.    Peck  314.  329 

Brown  v.  Elton  320.  466 

Bradshaw  v.  Bradshaw  327 
Brown  v.  Allen  339 

v.  Selwyn  350 

Brydges  v.  Wotton  347 

Briddie  v.  Briddle  390 

Brasbridge  v.  Woodcroft  361 
Bright  v.  Smith  394 

Bridgman.v.  Dove  417 

Brightman  v.  Knightly  425 
Brown  v.  Litton  428.481 

Brook  v.    Skinner  455 

Braithwaite  v.  Cooksey  475 
Bruere  v.   Pemberton  41 « 

Brice  v.  Stokes  485,  486 
Breedon  v.   Gill  494 

Burtenshaw  v.  Gilbert  13,  14 
Burston  v.   Ridley  49 


XX 


TABLE    OF    CASES    CITED. 


Page 
Burn  v.  Cole  71.  387 

Budd  v.  Silver  90 

Buckley  v.  Pirk  165.  279.  281 
Butler  v.   Duncomb  172 

Burton  v.  Pierpoint  226.  231 
Bunn  v.  Markham  235 

Burnett  v.  Holden  265 

Burting  v.   Stonard  256 

Buccle  v.  Atleo  269.  289.  454 
Buckland  v.  Brook  281 

Burke  v.   Jones  288 

Bull  v.  Kingston  352 

Buflbr  v.  Bradford  304.  361 
Burgess  v.  Robinson  314 
Butcher  v.   Butcher  319 

Butler  v.  Butler  325,  326 
Buckworth  v.  Buckworth  326 
Butler,  ex  parte  488 

Butler  v.  Richardson  ibid. 
Burroughs  v.  Elton  ibid. 

Byrchall  v.  Bradford  480 


Carey  v.  Askew  6.  325 

Caroon's  Case  12.  24 

Campbell  v.   French  15 

Carte  v.  Carte  22.  35 

Cave  v.   Holford  25 

Canterbury,    Archbishop 

of,  v.  House      65.  491.  495 
Canterbury,    Archbisbop 

of,  v.  Wills    247.  491.493. 

495 

Carter  v.    Bletsoe  172 

Canning  v.    Hicks      185,  186 

Cave  v.  Cave  196 

Cappin  v. 219 

Carr  v.   Taylor  223.  321 

Castleton,  Lord,  v.  Lord 

Fanshaw  343 

Catchside  v.  Ovington  253 
Careless  v.  Careless  300.  314 
Carteret  v.  Carteret  303.  331 
Caweth  v.   Phillips  349 

Carey  v.  Goodinge  $5Q.  361 
Carter  v.  Crawley      370.  373. 


Page 
Carter  v.   Crawley  382 

Caldicot  v.  Smith  382- 

Campart  v.  Campart  357 

Car  v.   Car  396 

Carter  v.    Barnadiston        417 
Calcot,  ex  parte  453 

Camden  v.  Turner  463 

Church  v.  Mundy  6 

Christopher    v.    Christo- 
pher 1 8 
Chetham    v.    Lord  Aud- 

ley  35.  456 

Chamberlain  v.  Cham- 
berlain 139 
Chauncey  v.  Gray  don  171 
Chandos,  Duke  of,  v.  Tal- 
bot 173.  305 
Chichester  v.  Bickerstaff  180 
Chester  v.  Painter  312 
Chamberlain  v.  Hewson  320 
Chambers  v.  Goldwin  325 
Chatteris  v.  Young  304 
Chaworth  v.  Hooper  326 
Chancey's  Case  336,  337 
Cheney's  Case  345 
Chornley  v.  Chomley  390.  401 


Chace  v.    Box 

396 

Challis  v.   Casborn 

412 

Chambers  v.  Harvest 

412 

Chandler  v.   Taylor 

425 

Charlton  v.  Lowe 

426 

Chamberlain  v.  William- 

son 

436 

Chevalier  v.    Finnis 

438 

Childs  v.   Monins 

463 

Churchill  v.    Lady  Hob- 

son 

481 

Churchill  v.  Hopson 

484 

Chambers  v.   Minohin 

486 

Civil  v.    Rich 

395 

Clerke  v.   Cartwright 

8 

Clarke  v.    Berkley 

21 

Clymer  v.   Littler 

22 

Cloberie's  Case            171. 

305 

Clarkson  v.    Bowyer 

189 

Cleland  v.  Cleland 

222 

Clarke  v.   Blake 

300 

TABLE    OF    CASES    CITED. 


XXI 


Page 
Clarke  v.  Sewell  337,  338 
Clifton  v.  Burt  339.  411.  420 
Cloyne,  Bp.  of  v.  Young 

352.  361 
Cleaver  v.  Spurling  391.  394. 

39a 
Clennel  v.  Lewthwaite  354 
Clerk  v.  Hopkins  355 

Clerk  V.  Withers       442.  447. 

449 
Cleve  v.  Vere  442 

Clerke  v.  Clerke  490 

Coles  v.  Trecothick  2 

Cothay  v.  Sydenham  9 

Cook  v.  Oakley  IS.  343 

Cotter  v.  Laver  9.  1*9!  25 

Coke  v.  Bullock  19.  21 

Coppin  v.  Fernyhough  22.  27 
Cockerill  v.  Kynaston         48. 
152.  43S,  439 
Comber's  Case  74    114 

Colborne  v.  Wright  102 

Copeman  v.  Gallant  134 

Cooke  v.  Fountain  158 

v.  Jennor  162 

Collins  v.  Metcalf      171.  305 
Cowper  v.  Scott  173 

Cotton  v.  lies  187 

Cox  v.  -Godsalve  204 

Comely  v.  Comely  231 

Cox  v.  Joseph  281 

Cox's  Case  415 

Cope  v.  Cope    2S4.   417.  419 
Cock  v.  Goodfellow  297 

Cooper  v.  Thornton  314, 

315.  317.  321 
Cockerell  v.  Barker  322 

Collis  v.  Blackburn  326 

Cookson  v.  Ellison  329 

Coleman  v.  Coleman  331 

Coote  v.  Boyd    334,  335,336 
Cordell  v.  Noden  352 

Colesworth  v.  Brangwin    361 
Cox  v.  Bellitha  395.  399 

Constable  v.  Constable      400, 

401 
Cooper  v.  Douglas  427.  481 
Colebeck  v.  Peck  442 


Page 
Coan  v.  Bowles  446 

Coke  v.  Hodges  447 

Cottle  v.  Aldriche  473 

Cockshutt  v.  Pollard  480 

Cook  v.  License  494 

Crooke  v.  Watt  94.  373 

Crabtree  v.  Bramble  180 

Crane,  v.  Drake  256 

Cray  v.  Rooke  2S3 

Croft  v.  Pyke  2S3.  296 

Crfcuze  v.  Hunter       286,  287 
Craven  v.  Tickell  287 

Crawford  v.  Trotter  312 

Crickett  v.  Dolby     312.  324, 
325,  326 
Crockat  v.  Crockat  331 

Cranmer's  Case  336,  337 

Crompton  v.  Sale  ibid. 

Cray  v.  Willis  343 

Crosman's  Case  347,  349 

Crosman  v.  Reade  349 

Cranley,  Lord,  v.  Hale      352 
Crackelt  v.  Bethuhe  481 

Cruchfield  v.  Scott  439 

Curtis  v.  Vernon        243.  367 
Currie  v.  Pye  335.  422 

Cuthbert  v.  Peacock  336 

Cutterback  v.  Smith  412 


D. 


Darley  v.  Darley  21.  25.  226 
230.  326 
Daniel  v.  Luker  52.  55 

Dabbs  v.  Chisman  124 

Dawson  v.  Killet        172.  305 
Davis  v.  Gibbs  179 

v.  Monkhouse  '  292 

v.  Gardiner  421 


Darston  v.  Earl  of  Orford  289 
Darrel  v.  Molesworth  305 
Dagley  v.  Tolferry  314 

Davies  v.  Austen  317 

Dawson  v.  Clark  352,  353 

Davers  v.  Davers     ,  352 

v.  Dewes  374 

Denham  v.  Stephenson        49. 

55 


XX11 


TABLE    OF    CASES    CITED. 


Page 
Devereux  v.  Bullock  57 

Devon,  Duke  of,  v.  At- 
kins 140.  240 
Deering  v.  Torrington  154 
Dembyn  v.  Brown  216 
Defflis  v.  Goldschmidt  300 
Descrambes  v.  Tomkins 

325,  326 
Debeze  v.  Mann  32.9 

Dewdney,  ex  parte  343 

Dean  v.  Dalton  350 

v.  Lord  Delaware     394 

Deeks  v.  Strutt  466.  489 

Dearne  v.  Grimp  468 

Dickenson  v.  Dickenson  14 
Disher  v.  Djsher  200.  2S6 
Dix  v.  Reed  346 

Dormer  v.  Thurland  6 

Doe  v.  Pott  •  '  15 

v.  Staple  19 

Douglas's,    Sir   Charles, 

Case  367 

Doune  v.  Lewis  419 

Doe  v4  Potter  433 

Dorchester  v.  Webb  347.  470 
Dorford  v.  Dorford  4S1 

Doyle  v.  Blake  484 

Drake  v.  Munday  176 

Druce  v.  Dennison  222 

Drury  v.  Smith  232.  234 

Drinkwater  v.  Falconer  33 
Duncomb  v.  Walker  46 

V.  Walter  434,  437 

Dulwich  College  v.  John- 
son' 4S.  495 
Dubois  v.  Trant          121,122. 

124 
Duppa  v.  Mayo  176 

Dudley,  Lord,    v.     Lord 

Warde  197.  210 

Dupleix  v.  De  Roven  .  266 
Duffield  v.  Smith  329 

v.  Elwes  236 

Dubost,  ex  parte  229 

Durant  v.  Prestwood  374.  3S5 
Dupratt  v.  Testard  466 

Dubray  v.  Comb  467 

Dyer  v.  Kearsley  454 


E. 


Page 
Earl  v.  Wilson  300 

Eastwood  v.  Vinke   336,  337 
Eaves  v.  Mocato  439 

Earl  v.  Brown  •  442 

Ecles  v.  England  304 

Edwards  v.   Countess  of 

Warwick  7.  1S*0.  208 

Edwards  v.  Freeman  25. 

341.  36S.  370.  373.  376, 
377,  378.  380.  419 
Edwards  v.  Harben  38 

Eddowes  v.  Hopkins  287 

Edwards  v.  Graves  412 

— — —  v.  Bethee  467 

Ellis  v.  Smith  2.  6.  15 

Elliot  v.  Collier  115.  380. 

389.  396.  398.  401 
Elliot  v.  Gurr-  84 

Elme  v.  Da  Costa  131 

Ellis  v.  Guavis  186 

Elwes  v.  Maw  197 

Elliot  v.  Merriman  256 

Ellison  v.  Airey  300.  455 

Ellis  v.   Walker  301 

Elliot  v.  Davenport  303 

Ellibank,  Lady,  v.  Mon- 

tolieu  320,  321 

Ellison  v.  Cookson  329 

Elwell  v.   Quash  359 

Ellis,  ex  parte  488 

Emerson  v.  Boville  19 

— v.  Emerson        157. 

159.  433.  436 
Ernes  v.  Hancock  1  72 

Embry  v.  Martin  ibid. 

English,  ex  parte  452 

Errington  v.  Hirst  179 

Erby  v.  Erby  259,  260 

Erving  v.  Peters  431.  454 
Eubrin  v.  Manpesson  447 
Evans  v.  Trip  302* 

Evelyn  v.  Evelyn     3S1.  3S4. 

419 
Everlyn  v.  Chichester"  436 
Eves  v.  Mocato  439 

Ewer  v.  Corbet  256 


TABLE    OF    CASKS    CITED. 


xxm 


Page 
Eyre     v.      Countess  oi* 
Shaftsbury  242.  407 

F. 

Farrington    v.    Knightly 

30.  117.  306.  352.478.490. 
Fa w try  v.  Favvtry  84.  87.  94. 
98.  103.  105 
Farr  v.   Newman        134.  468 
Fawsey  v.  Edgar  173 

Farquhar  v.   Morris  287 

FawkeS  v.  Gray  313 

Farnham  v.   Phillips  329 

Fane  v.    Blance  394 

Fawkner  v.  Watts  396.  398 
Farish  v.  Wilson  466 

Farr  v.  Newman  467 

Faith  v.   Dunbar  489 

Fearon,  ex  parte  2 

Fettiplace  v.  Gorges  9.  11.  84 
Fell  v.   Lutwidge  95 

Fellowes  v.  Mitchell  307.  484 
Ferrand  v.   Prentice  481 

Fereyes  v.  Robertson  417 
Fetherston  v.  Allybon  438 
Fielden  v.  Fieklen  454 

Fitzgerald  v.  Villiers  471 
Fisher  v.  Lane        •  477 

Fleice  v.   Southcot  37 

Fletcher  v.  Stone  284 

Find  v.   Rumcey  350 

Flanders  v.   Clarke  363 

Fletcher  v.   Walker  427 

Forrester  v.   Pigou  2 

Fooler  v.   Cooke  42.  142 

Foxwist  v.   Tremaine        102 
355.  446 
Fonnereau  v.   Fonnereau 

171.  305.312 
Fowler  v.   Fowler    227.  336, 

337 
Ford  v.    Fluming 
Foy  v.   Foy 
Fotmereau  v.    Poyntz 
Fox  v.  Fox 
Foster  v.  Munt 
Fowke  v.   Hunt 


Page 
Ford  v.  Glanville  406 

Forrester  v.   Lord  Leigh 

419.421 
Foster  v.  Blagden  422 

v.   Jackson  446 

Forbes  v.   Ross  481 

Frederick  v.  Hook  46 

Freke  v.  Thomas  101.  386 
Fryer  v.  Gildridge  167.296 
Freemoult  v.  Dedire  283 
Freemoult  v.  Dedire  414 
Freeman  v.  Fairlie  347.  456 
Fretwell  v.  Stacy  347 

Frewin  v.   Rolfe  363 

Franklin  v.  Frith  426,427 
Frevin  v.    Paynton  436 

Frescobaldi  v.  Kinaston    471 


G. 


165. 


Garland,  ex  parte 
Garret  v.  Evers 
Garforth  v.    Bradley 
Garth  v.  Ward    . 
Gage  v.  Acton 
Gawler  v.   Slander  wick 
Gay  nor  v.   Wood 


486 
189 
219 
269 
278 
313 
336 


Garret  v.   Lister 
Garon  v.  Trippit 
Garrick  v 
Garvey  v. 
Gawler  v 
Galton  v. 


331 
335 
343 
350 
352 
390 


344,  345 
380.  394 
Lord  Camden  386 
Herbert  300 

Wade  411 

Hancock  417.  419, 
420,421 
Gale  v.  Till  8 

General  v..Tyndall  422 

Gearz  v.   Beaumont  429 

Gibson    v.    Lord   Mont- 
ford  25,  26,  27 
Gifford  v.  Goldsey  173 
Gillaume  v.  Adderley  301.  303 
Gillespie  v.  Alexander       335 

318 


Gibson  v.   Kinven 

v.  Bott 

Giraud  v.   Fkmbury 
Gibbs  v.    Rumsey 
Girling  v.    Lee 
Gittins  v.  Steele 


32: 


Fouke  v.   Lewin        393.  396    Giles  v.   Dyson 


i,  324 
352 

ibid. 
412 
417 
424 


XXIV 


TABLE    OF    CASES    CITED. 


Page 
Gilpin  v.  Lady  South- 
ampton 455 
Gibson  v.  Brook  468 
Gill  v.  Scrivens  470 
Gladding  v.  Yapp  352 
Goodright  v.  Sales  7 
Gore  v.  Knight  9 
Goodright  v.  Glazier  17 
Goodtitle  v.   Newman          18 

v.  Meredith  26 

Gold  v.   Strode  55 

Goodfellow  v.  Burchett  142. 
288.  426 
Goss  v.  Nelson  171.  172 

Gordon  v.   Raynes  172 

Goodright  v.    Sales  178 

Gomersall  v.   Aske  265 

Goldsworthy  v.    South- 

cott  265.443 

Goldsmith  v.  Sydnor  275.  281 
Godfrey  v.  Newport  278 

Gordon  v.  Raines  305 

Goodwin  v.  Ramsden  394 

Goring  v.   Gpring  425 

Goldthwayte  v.  Petrie       439 
Goodwin,  ex  parte  452 

Gould  v.m  Fleetwood  456 

Goodwyn  v.  Goodwyn       491 
Griffin's  Case  2 

Greenhill  v.  Greenhill  25 

Green  v.  Shipworth  57 

v.  Proude  ibid. 

Griffiths  v.   Hamilton  76. 
352.  360.   363 
Grandison,  Lord,  v.  Coun- 
tess of  Dover       .   105.  124 
v.    Coun- 
tess of  Devon                   124 
Greaves  v.  Powell              142 
Grantham  v.  Hawley  202.  205 
Grute  v.  Locroft                 215 
Griffith  v.  Wood               ibid. 

v.    Bennett  247 

Graham  v.   Londonderry 

226.  228.  2S0,231.  422 

Greenside  v.    Benson       245. 

491.495 

Grosvenor  v.  Cook  287 


Page 
Greenwood  v.  Brudnish  292 
Green  v.  Pigot  312.  324.  481 
Grove  v.  Banson  322 

Green  v.  Ekins  326 

-  ex  parte 


Grace  v.  Earl  of  Salis- 
bury 329 
Gray  don  v.  Hicks  350 
Granville,  Lady,  v.  Duch- 
ess of  Beaufort  35  3,  354 
Griffith  v.  Rogers  353 
Green  v.  Green  417 
Growcock  v.  Smith  422 
Gregg's  Case  439,  440 
Guidot  v.  Guidot  180 
Gudgeon  v.   Ramsden        395 

H. 

Haig  v.  Sw'iney  313 

Harris  v.  Bedford  3 

v.  Ingledew  6 

Harwood  v.    Goodright      17. 
21,22 
Harkness  v.   Bailey       19.  21 
Hawes  v.   Wyatt  22 

Harrison  v.    Beccles  454 

v.  Rowley        39.  342 

Harris  v.   Hanna  48 

Habergharri  v.  Vincent  68 
Hatton  v.  Mascal  102.  447 
Havers  v.  Havers  102 

Harrison  v.   All  Persons   103 

v.   Michell     121,  122 

v.  Weldon  121 

Hayton  v.  Wolfe  114 

Harecourt   v.    Wrenham 

159.  161 
Hall  v.   Huffam  162 

v.  Terry  172 

Harvey  v.  Harvey     197.  224 
Hardwick,  Lord,  in  Law- 
ton  v.  Lawton  197 
Hay  v.  Palmer            208.  210 
Hastings,  Lord,  v.  Sir  A. 

Douglas  228.  230 

Hassell  v.  Tynte  236 

Harman  v.  Harman  269.  292 
Harding  v.   Edge      270.  289 


TABLE  OF  CASES  CITED. 


XXV 


Page 
Hales  v.  Freeman  328 

Hall  v.  Bradford  157.  433 
Hall  v.  Hallet  425 

Hall  v.  Huffam  474 

Hambling  v.  Lister  330,  331 
Hambly  v.  Trott  460.  462 
Hancock  v.  Hancock  391.  394 
Handby  v.  Roberts  421 

Harcourt  v.  Wrenham  415 
Harden  v.  Parsons  428 

Harford  v.  Browning  347 
Hargrave  v.   Rogers  466 

Hargthorpe  v.  Milforth  472 
Harris  v.  Docura  481 

Harris  v.  Jones  440 

Harris  v.  Vandridge  433 

Harrison  v.  Bowden  442 

Harrison  v.  Naylor  305 

v.   Buckle  312 

Hartop  v.   Whitmore         329 

v.  Hartop  329 

Hartwell  v.  Chitters  415 

Harvey  v.  Harvey  326,  327 
Harwood's  Case  390.  393 

Haslewood  v.  Pope  417.  420 
Hathorntbwaite  v.  Russel  483 
Hatton  v.  Hatton  490 

Haughton  v.  Harrison  326 
Hawes  v.    Saunders  438,  439 

440 
Hawes  v.  Warner  336,  337 
Hawkes  v.  Saunders  463,  464 
Hawkins  v.  Day  281.  292 
322.  471 
Hayes  v.  Mico  337 

Hay  ward  v.  Kinsey  426 

Head  ley  v.  Redhead  340 

Heapy  v.  Paris  266 

Heapy  v.  Paris  468 

Hearle  v.  Greenbank         312. 
324,  325.  327 
Hearne  v.  Barber     394.  396 
Heath  v.  Heath  417 

Heath  v.  Perry  301.  324,  325 
Hedges  v.  Hedges  232 

Helier  v.  Casbert  142 

Henslor's  Case  74 

Herbert  v.  Torball  8.  27 


Herbert  v.  Herbert 
's  Case 


Page 
9 
269 
420 
399 
180 
324 
26 
326 
358 
124 


Heme  v.  Meyricke 
Heron  v.  Heron 
Hewitt  v.  Wright 
Hewitt  v.  Morris 
Heylyn  v.  Heylyn 
Heysham  v.  Heysham 
Heyward's  Case 
Hibben  v.  Calemberg 

Hickey  v.  Hayter      266,  267 

Higgs  v.  Warry  439 

High  man,  ex  parte  320 

Hill  v.  Chapman  234 

Hill  v.  Hill  326 
Hill  v.  Mills                  31,  32 

Hill  v.  Turner  490 

Hilliard  v.  Cox  52 

Hillyard  v.   Taylor  422 
Hinchinbrooke,  Lord,  v. 

Seymour  173 
Hindsley  v.  Russel  464.  468 
Hinton  v.  Parker  253 
Hinton  v.  Pinke  301,  302.  340 
Hitclrins  v.  Basset  17 
Hitchon  v.  Bennett  416 
Hockley  v.  Bantock  481 
Hodges  v.  Beverley  228 
Hodges  v.  Cox  477 
Hodges  v.  Waddington  340' 
Hodgson  v.  Rawson  172 
Hodsden  v.  Lloyd  19 
Hoe  v.  Nathorpe  77 
Hog  v.  Lashley  57 
Hogan  v.  Jackson  22 
Holbird  v.  Anderson  288 
Holcomb  v.  Pettit  472 
Hold  itch  v.  Mist  322 
Holderness,  Countess  of, 
v.  Marquis  of  Carmar- 
then 178.  200 
Holland  v.  Hughes  318 
Hollingshead's  Case  442 
Hollingsworth  v.  Ascue  276 
Hollis  v.  Smith  439 
Holloway  v.  Collins  314 
Hollo  way  v.  Clarke  19 
Holt  v.  Frederick  5S0 


XXVI 


TABLE    or    CASES    CITED. 


Page 
Holt  v.  Bishop  of  Win- 
chester 189 
Hone  v.  Medcraft  22 
Hoole  v.  Bell  450 
Hooley  v.  Hatton  334 
Hooper  v.  Summerset  37 
Horay  v.  Daniel  471 
Hornsby  v.  Hornsby  304 
Hornsby  v.  Finch  352 
Horsam  v.  Turget  478 
Horsley  v.  Chaloner  483 
Horton  v.  Wilson  496 
Hortop  v.  Hortop  329 
Hoskins  v.  Hoskins  354 
Hoste  v.  Pratt  326 
Hough  v.  Ryley  320 
Houghton  v.  Franklin  324 
House  v.  Ld.  Petre44.  76. 118 
Hovey  v.  Blakeman  4S4 
Howard  v.  Jemmet  134.  463. 

467 
Howe  v.  Earl  of  Dart- 
mouth *318 
Howe  v.  Howe  179 
Howe  v.  Whitebanck  *  169 
Howell  v.  Barnes  363 
Howell  v.  Hanforth  210 
Howell  v.Maine  219 
Howell  v.  Price  284.  417. 421 
Howell  v.  Waldron  490 
Howse  v.  Webster  .  457 
Hubert  v.  Parsons  172.  305 
Hudson  v.  Hudson  74.  114. 
241.  359.  407.  446.471 


Hughes  v.   Hughes 
v.  Doulben 


36S 
410 
180 
26 


Hulbert  v.  Hart 
Hulme  v.  Heygate 
Humbcrstone  v.  Stanton    304 
Humble  v.  Bill  256 

Hume  v.  Edwards     302.  339. 

396 
Humphreys  v.  Ingledon      46 

v.  Humphreys 

46.  302 
Hunt  v.  Hunt  152 

Huntingdon  v.  Hunting- 
don  2 


Huntley  v.  Griffiths 
Husband  v.   Pollard 
Hussey  v.  Berkeley 
Hutchens  v.  Fitzwater 
Hutcheson  v.  Hammond 

Hutchins  v.  Foy 
Hutchinson  v.  Savage 
Hutton  v.  Simpson 
Hyde  v.  Hyde  1 
v.  Skinner 


Page 
220 
161 
300 
172 

303. 

427 

171 

134 

27 

3.  17 
144 


I. 


Ilchester,  Earl  of,    ex 

parte  IS,  19 

Inchiquin,  Earl  of,  v. 

French  304.417 

Incledon  v.  Northcote       422 
Ireland  y.  Coulter  365 

Irod  v.    Hurst  330 

Irving  v.  Peters  455 

Isted  v.  Sjtanley  114.  117 

Ives  v.  Meidcalf  399 

Izon  v.  Butler  304 

J. 
Jackson  v.  Hurlock  21 

Jackson  v.  Kelly  341 

Jackson  v.  Leaf  455 

Jacobs  v.  Miniconi  442 

Jacomb  v.  Harwood  241, 

242.  256.  359.  407 
James  v.  Dean  141 

Janson  v.  Bury  374 

Jauncey  v.  Sealey  71 

Jeacock  v.  Falkener  337 

Jeffe  v.  Wood  336.  33S 

Jeffereys  v.  Small ,  155 

Jefferies  v.  Harrison  4S3 

Jemmot  v.  Cooly  179 

Jenison  v.  Ld.  Lexington  140 
Jenkins  v.  Whitehouse  9 

Jenkins  v.  Plombe    152.  426, 
427.  436 
Jenkins  in  re  131 

Jenkins  v.  Plume      161,162. 

43S 
Jenkins  v.  Powell  329 

Jennings  v.  Looks  172 


TAliLE 

OF    < 

Page 

Jenks  v. 

Ilalford 

396 

Jenner  v. 

]\1  organ 

20S 

Jennor  v. 

Harper 

339 

Jenour  v. 

Jenour 

343 

Jesson  v. 

Essington 

393 

Jevons  v 

Harridge 

12 

V 

.  Livemore 

ibid. 

CASES    CITED. 


XXV11 


Jewson  v.  Moulson    217.  490 

Johns  v.  Rowe  S4 

Johnson  v.  Lee  496 

Johnson's  Case  US 

Johnston  v.  Johnston  19 

Jolly  v.  Gower  2S9 

Jones  v.  Earl  of  Stafford  101 

v.  Goodchild  106 

■ v.  Waller  129 

v.  Jones  154 

v.  Selby  234 

v.  Westcomb  354 

v.  Wilson  439 

Joslin  v.  Brewit  352 

Joseph  v.  Mott  289 

K. 

Keates  v.  Burton  319 

KelsockV.  Nicholson  360 

Kemp  v.  Andrews     155.  162 

Kendal  v.  Micfield  140 

Kendar  v.  Milward  182 

Kenrick  v.  Burges      243.  367 

Kennedy  v.   Stainsby  352 

Kenyon  v.  WTorthington  455 

Ket  v.  Life  131 

Keylvvay  v.  Keylvvay  3S2 

King  v.  King    '           284.  417 

■*  v.  Ayloffe  434 

V.Stevenson      436,437 

Kirkman  v.  Kirkman  391 

Knight  v.  Duplessis  102* 

Knight  v.  Maclean  2S7 

■ v.  Knight  410 

Knivet'/n  v.   Latham  357 

Knot  v.  Barlow  357 

L. 

Lacam  v.  Mertins      119,  420, 

421 

L-'dtc  v.  Craddock  155 


Page 
Lake  v.  Lake  353,  354 

Lampen  v.  Clowhery  171,  172 
Lamplugh  vi  Lamplugh  354 
Lancashire  v.  Lancashire  IS 
Lancy  v.  Duke  of  Athol  420 
Lancy  v.  Fairchild  281 

Langham  v.  Sandford  352 

Langford  v.  Gascoigne  4S6 
Langston  v.  Ollifant  428 

Lassels  v.    Lord  Corn- 

wallis  2S3 

Laundy  v.  Williams  313.  325 
Lawsou  v.  Hudson  419 

Lawson  v.  Stitch  #  301.323 
Lawson  v.  Lawson  232.  234, 
235,236 
Lawton  v.  Lawton  197,  210 
Leake  v.  Robinson  324 

Lechmere  v.  Earl  of  Car- 
lisle ISO.  189.  283.415 
Lee  v.  Cox  386 
Leech  v.  Leech  327 
Leek,  ex  parte  488 
Lees  v.  Summersgill  300 
Le  Grice  v.  Finch  331 
Leigh  v.  Barry  4S4 
Leman  v.  Newnham  419 
Leman  v.  Tooke  28 1 
Le  Mason  v.  Dixon  436 
Levet  v.  Lewkenor  447.  449 
Levet  v.  Need  ham  178 
Lewin  v.  Lewin        302.  339. 

391 
Lewis  v.  Lewis  314 

Lewin  v.  Okeley  412 

Lewis  v.  Mangle  119 

Limberg  v.  Mason  2.  17.  57 
Limmer  v.  Every  IIS 

Lingard  v.  Earl  of  Der- 
by 410 
Lin  gen  v.  Sowray  7.  180, 
'  1S1 
Lister  v.  Lister  222 
Littleton's,   Sir  Thomas, 

Case  1S5 

Littleton  v.  Hibbins  259, 

260.  269.  2"92 


XXVlll 


TABLE  OF  CASES  CITED. 


Page 

Littlehales  v.  Gascoyne    426. 

429.471,  472 

Lloyd  v.  William 

V.  Tench  374. 


323 
381. 
384 
297 
349 
350 
399 
283 
32S 
178 


Loame  v.  Casey 
Lockier  v.   Smith 
Lockyer  v.  Simpson 

v.  Savage 

Loeffs  v.  Lew  in 
Logan  v.  Fairlie 
Lonquet  v.  Scawen 
Lonsdale,  Lord,  v.  Church  287 
Long  v.  Short  301.  340 

London,  City  of,  v.  Rich- 
mond 319 
Longmore  v.  Broom  ibid. 
Lord  v.  Wormleighton  455 
Lowther  v.  Cavendish  314 
Lowther  v.  Condon  171,  172 
Lowndes  v.  Lowndes  326 
Lowson  v.  Copeland  426 
Lucy  v.   Levington   158.  431 

226 

253 

18 

312.  491 

304 


Lucas  v.  Lucas 
Luck's  Case 
Lugg  v.  Lugg 
Luke  v.  Alderne 
Lumley  v.  May 
Lutwyche  v.  Lutwyche 
Lutkins  v.  Leigh 
Lyddall  v.  Dunlapp 
Lynn  v.  Beaver 

.       M- 

Macclesfield,   Earl  of,  v. 

Davis 
Mackenzie  v 


3SI 
421 
279 
355 


199 


Mackenzie  437. 
467 
Maddox  v.  Staines 
Madox  v.  Jackson 
Maddison  v.  Andrews 
Maltby  v.  Russell 
Malcomb  v.  Martin    322. 
Manaton  v.  Manaton 
Mann  v.  Copeland 
Manning  v.  Napp 
Mann  v.  Bishop  of  Bris- 
tol 144 


315 
410 
319 
2S8 
32S 
410 
302 
106 


Page 
Mannering  v.  Herbert  172 
Manning's  Case  355 

Manning  v.  Spooner         416. 

419 
Martin  v.  Mowlin  1S7.  189 
Marlborough,    Duke    of, 

v.  Lord  Godolphin  9 

Marshall  v.  Frank  85 

Marlow  v.  Smith  134 

Martin  v.  Crump  155.  162 
Marshall  v.  Frank  179 

Martin  v.  Rebow  352,  353 
Marwood  v.  Turner  22.  25 
Martwick  v.  Taylor  57 

Marriot  v.  Marriott  65.  76 
Martin  v.  Martin  270 

Markland,  ex  parte  4SS 

Mason  v.  Williams  270 

Massey  v.   Hudson  304 

Masters  v.  Masters  334,  335, 
336.  339.  420 
Mason  v.  Limberry  14 

Mason  v.   Dixon  159 

Mathews  v.  Mathews  337 
Mathews  v.  Warner  2.  74 
Mathews  v.  Weston  179 

Mathews  v.  Newby  3S9.  480. 

489 
M'Williams,  matter  of  35S 
Maw  v.  Harding  382 

Maxwell  v.  Wettenhall  323 
Mayott  v.  Mayott  301 

May  bank  v.  Brooks  303 

May  v.  Wood  171 

Meadv.  Lord  Orrery  44.  256. 
306,  307.  311 
Meales  v.  Meales        321.  490 
Medcalfev.  Medcalfe       391. 

394 
Mellor  v.  Overton  28S 

Mence  v.  Mence  14 

Mentney  v.  Petty  8S 

Merchant  v.  Driver  42S 

Methuen  v.  Methuen  17 

Middletonv.  Dodswell      4S9 
Middleton  v.  Spicer  353 

Miles's  Case  224 

Miller  v.  Miller 


TABLE    OF    CASES    CITED. 


XXIX 


Page 
Mildmay's,    Sir    Henry, 

Case  466 

Milncrv.  Lord  Harewood 

140.409 
Miller  v.  Miller       232.  234. 

236 

v.  Warren  304 

Milner  v.  Colman  320 

Minnel  v.  Sarazine  336 

Mitchinson  v.  Hevvson  219 
M'Leod  v.  Drummond  256 
Mogg  v.  Hodges  420.  422 
Monkhousev.  Holme  171 
Moore  v.  Godfrey  313 

Moore  v.  Moore  17 

Moore  v.  Moore  242 

Mordaunt  v.  Hussey  352 

Moreton's  Case  157.433 

Morrice  v.  Bank  of  Eng- 
land 269,  270.  289 
Morris  v.  Burroughs  391.  3U6. 

399 
Morrison  v.  Turner  2 

Morley  v.  Ward  481 

Morgan  v.  Greene  257 

Morgan  v.  Harris  496 

Mortlock  v.  Leathes  480 

Morton  v.  Hopkins  433 

Motam  v.  Motam  320 

Mountford  v.  Gibson  257 
Munday  v.  Earl  Howe  326 
Munt  v.Stokes  '  152.  436 
Murray  v.  Jones  70 

Murrcl  v.  Cox  4S4 

Musson  v.  May  297 

Myddleton  v.  Rushout      249 

N. 

Nanney  v.  Martin  223 

Napier,    Charles    James, 

in  re  73 

Neale  v.  Willis  171 

Nceve  v.  Hecke  172 

Nelthorp  v.  Hill  341 

Netter  v.  Bret  68 

Newport  v.  Godfrey  278 

Newman  v.  Barton     340,341 


Page 
Newman  v.  Hodgson  55 

Newstead  v.  Johnson        342, 

343 
Newton  v.  Bennet     412.414. 
428.  480.  483 
Nicholas  v.  Kelligrew  48 

Nicholas  v.  Nicholas  490 

Nichols  v.  Osborne    326.  354 
Nicholls  v.  Judson  337 

v.  Crisp  352 

Nisbett  v.  Murray  319 

Noel  v.  Nelson  467.  470 

Noel  v.  Robinson     308.  321, 
322.  340.  416 
Norden  v.  Levit  425 

Norgate  v.  Snape  447 

Norton  v.  Turville  486 

Norwich,  Mayor   of,    v. 

Johnson  39 

Norwich,  Mayor,  v.  John- 
son 473 
Northey  v.  Northcy  230 

v.  Strange    300.  305. 

3S9,  390.  396 

v.  Burbage  304 

•Northumberland,  Earl  of, 

v.  Marquis  of  Granby  314 
North,  Lord,  v.  Purdon  352 
Nourse  v.  Finch  354 

Noysv.  Mordant  187 

Nugent  v.  Gilford  256 

0. 

Offley  v.  Best      71.  121,  122. 
125.127 

v.  Offley  230.  245 

Oke  v.  Heath  1,  2.  304 

Oldfield  v.  Oldfield  172 

Onions  v.  Tyrer       6.  13,  14, 
15.17 
Oneal  v.  Meade  421 

Openheimer  v.  Levy  34 

Orr  v.  Kains  340 

v.Newton  364 

Owen  v.  Curzon  457 

Oxenden  v.  Lord  Comp- 
ton  190 


XXX 


TABLE    Ol     CASKS    CITED. 


Packer  v.  Wyndham 

Paddy,   ex  parte   in 

Drakely 
Pad  gel  v.  Priest 
Page  v.  Lcapingwell 

v.  Pager 

Paget  v.  (lee 
Paget  v.  Hoskins 

Paine  v.  Teap 
Palgravev.  Windham 

Palmer  v.  Trevor 
Palmer  v.  Dawson 
Palmer  v.  Garrard 
Palmer  v.  Allicock 
Pannel  v.  Taylor 
Papworth  v.  Moore 
Parsons  v.  Dunne 
Parsons  v.  Freeman 
J 'arsons  v.  Freeman 
Parker  v.  BlSCOe 

Parker  v.  Kitt 
Parker  v.  Atfield 

v.  Dee 

v.  Amys 

v.  blasters 

Parrot  v.  Worsiiold 
Partridge  v.  Partridge 


Page 
222 
223 
re 

452 

38.  41 

340 

343 

208 

256 

11 

158. 

434 

224.  320 

288 

374 

386 

489 

312 

320 

lii. 21 

419 

21 

243.  304 
266 

288,  289 
293 
293 
302 
502. 

o  O  <■> 

68 


Partridge's  Case 

Patleu,    executrix,  v. 

Panton  4(i 
Pawlct's,  Lord,  Case  171.  330 

Peach  v.  Phillips  19 

Peacock  v.  Monk  227.  239 

Pe'anlie's  Case  94 
Pearcev.Chamherlain  1G5. 167 

Pearce  v.  Taylor  422 

Pearly  v.  Smith  210 

Pearson  v.  Garnet  322 

Pearson  V.  Henry  463,  464 

Pease  v.  Mead  168 

Peck  v.  Parrot  169 

Penticost  v.  Ley  302 

Peploe  v.  Swinburn  269.  289 

Percival  v-  Crispe  38"9 


Page 
Pcrrot  v.  Austin  2«4 

Perkins  v.  Bay n ton  426 

Perkins  v.  Baynton  480 

Perkins  v.  Micklethwaite  304 
Perkins  v.  Thornton  223 

Pcrkcs  v.  Perkes  14 

Petre,  Lord,  v.  Ilcneagc    196 
Pelrie  v.llannay  431 

Pctl  v.  Pett  382 

Pett's  Case  3.  82.  373 

Pett  v.   Inhah.  of  Wing- 
field  475 
Pcttifer  v.  James  393 
Petit  v.  Smith   247.  360,  361. 
370.  490 
Pheasant  v.  Pheasant         220 
Phillips  V.  Phillips      140.  417 
Phipps  v.  Pitcher  2 
Phipps  v.  Earl  of  Angle- 
sea                                       17 
Phillips  v.   Bignell            249 

_  v.  Echard  2 70 

_  y.  Paget       314,  315. 

317 
Phiney  v.  Phiney  377,  378 
Phipps  v.  Steward  496 

Pickering  v.  Towers   .  35 

Piersoh  v.  Garnet  328 

Pigot   and    Gascoigne's 

Case  102 

Pilkiugton  v.  Peach  12 

Pinhury  v.  Elkin  169 

Pipon  v.  Pipon  387 

PilfiekPa  Case  172 

Pitt  v.  Hunt  217 

v.  Lord  Camclford     301 

Pitts  v.  Evans  490 

Plume  v.  Beale  70 

Plume*  v.  Marchant  278. 
283.  296,  297 
Plunketv.Penson  414,415 
Pockley  v.  Poekley  417.419 
Pollard"  v.  Gerrard  496 

Poole's  Case  196 

Pu|>e  v.  Whitcomhe  300 

Portland,  Countess  of,  v. 

Progers  11 

Portman  v.  Cane 


TABLE  OF  CASES  CITED, 


XXXI 


Wightman 


Potts  v.  Layton 
Potter  v.  Potter 
Potingcr  v 
Pott  v.  Fellows 
Poulet  v.  Poulet 
Powley  and  Sear's  Case 
Powell  v.  Coleaver 
Powell  v.  Han  key 
Powell  v.  Killick 
Pratt  v.  Stocke 
Pratt  v.  .Sladden 
Prattle  v.  King 
Price  v.  Packhurst 
Price  v.  SimpsOn 

v.  Vaughan 

Pring  v.  Pring 
Prowse  v.  Abingdon 


Page  I 
455 
26,  27 
3S7 
'326 
172 
60 
329 
227 
452 
125 
352,353 
141 
446 
403 
4S6 
300 
172. 
422 
Proud  v.  Turner  378 

Probert  v.  Clifford  422 

Pullen  v.  Serjeant  305 

Pulkney  v.  Earl  of  Dar- 
lington ISO 
Purse  v.  Snaplin  301,  302 
Pusey  v.  Pusey  190 
Pusey  v.  Desbouverie  391 
Pynchyn  v.  Harris-  139 
Pyne  v.  Woolland       243.367 

Q. 

Quick  v.  Staines         134,  135 
Quincy,  ex p arte  197 

R. 

Rachfield  v.  Careless       .118. 

350.  352.  354 
Raine's,      Sir     Richard, 

Case  65 
Raine  v.  Comin.  of  Dioc. 

ofCanterb.  74 

Randall  v.  Bookey  352 

Ranking  v.  Barnard  338 

Rann  v.  Hughes  463 

Raphael  v.  Boehm  4S1 

Rashleigh  v.  Master  2 OS 

Rashley  v.  Masters  483 

Ratcliff  v.  Graves  159 


Ravenscroft   v 

croft 
Raven  v.  White 
Rawlins  v.  Burgis 
Rawlins  v.  Powel 


Ravens- 


Page 

121 

326 

23 

337 

Rawlinson  v.  Shaw    297.  466 
Ray  v.Ray  135 

Read  v.  Phillips  2 

Read  v.  Litchfield  417 

Read  v.  Truelovc  484 

Redshaw  v.  Brasier  38S 

Reech  v.  Kinncgal  336 

463.483 
Reed  v.  Desvayncs  347 

Reeves  v.  Freeling  249 

Regina  v.  Rogers      3S9,  390. 

394 

Rex  v.  Bettesworth         9.  71. 

85.  105 

v.  Raines        31.  41.  65. 

370.  490 

v.  Simpson  44 

v.  Hay  65 

- v.  Netherseal  74 

v.  Vincent  76 

V.Rhodes  76 

v.  Inhab.  of  Horsley     S7 

v.   Willet  141 

v.  Inhab.  of  Stone     145 

v.  Stockland  157 

v.  Withers  172 

v.  Hilton  35S 

v.  Peck  457 

v.  Pett  ib. 

Rickards  v.  Mum  ford  14 

Richardson  v.  Disborow    494 
Richardson  V;  Greese         172. 

336 
Richfield  v.  Udall  34 

Richmond  v.  Butcher  176 

Ridout  v.  Lewis  227 

Rider  v.  Wager   25.  304.  307. 
331.  338.  421 
Ridges  v.  Morrison  334,  335 
Ridler  v.  Punter  135 

Ridout  v.    Earl  of  Ply- 
mouth 230 
Rigdcn  v.  Vallier  57 


xxxn 


TABLE  OF  CASES  CITED. 


Page 
Rigbtston  v.  Overton  185 

Ripley  v.  Waterworth  3 

Rivers,  Earl,  v.  Earl  Der- 
by 173 
Ross  v.  Ewer  9 
Rowley  v.  Eyton  26 
Robinson  v.  Pett  44.  455,  456 
Rose  v.  Bartlctt  106 
Robin's  Case  120 
Rockingham,    Lord,    v. 

Oxenden  176 

Roper  v.  Radcliffe  199 

Rook  v.  Warth  201 

Rolfe  v.  B'udder  226 

Rogers  v.  Danvers     276.  283 
Robinson  v.  Gee  283.417.419 

v.  Bland  287 

v.  Tonge  409.  411. 

421 
Rose  v.  Rose  304 

Roden  v.  Smith  312 

Rotheram  v.  Fanshaw         317 
Rowney  v.  Dean  438. 

Rogers  v.  James  453 

Rocke  v.  Hart  481.  483 

Rous  v.  Noble  481 

Rudstone  v.  Anderson  22 

Rutland  v.  Rutland  133 

Rutland,     Duke     of,    v. 
Ducbcss  of  Rutland       354. 
382 

,  Countess  of,    v. 

Rutland  431.  433 

Rutler  v.  Rutler  390 

RussePs  Case  357.  433 

Rush  v.  Higgs  455 

Rye  v.  Fuljambe  320 


Sand's  Case  122.  124 

Sadler  v.  Daniel  124.491 

Sacheverel  v.  Frogate       176. 

179 
Salwey  v.  Salwey  222 

Sawyer  v.  Mercer  293 

Sayer  v.  Sayer  301,  302.  339 
Saunders  v.  Drake  322 


Page 
Saville  v.  Blackct  330' 

Sam  well  v.  Wake  417 

Sagittary  v.  Hyde  420 

Sausmerez,  ex  parte  452 

Sadler  v.  Hobbs  484 

Scott  v.  Rhodes  57 

Scudamorev.  Hearne281.  292 
Scattergood  v.  Harrison  455, 

456 
Scott  v.  Stephenson  463 

Scurfield  v.  Howes  484 

Semi ne  v.  Howes  229 

Searle  v.  Law  263 

v.  Lane     263.  266.  269 

Seton  v.  Lane  317 

Serle  v.  St.  Eloy  417 

Seaman  v.  Everald  425 

Seers  v.  Hind  483 

Shaw  v.  Cutteris  12 

Sheath  v.  York  19 

Shawv.  Stoughton  50 

Shergold  v.  Stoughton  57 

Shepherd  v.  Shorthose  77 
Shore  v.  Porter  140 

,  Lady,  v.  Billingsby  154 

Sherman  v.  Collins  172 

Sherrard  v.  Collins  210 

Shaugley  v.  Harvey  232 

Shilleg's  Case  245 

Shafts  v.  Povvel  269 

Sharp  v.  Earl  of  Scarbro'  287 
Shirt  v.  Westby  324 

Shepherd  v.  Ingram  326 

Shudall  v.  Jekyll  329 

Shiphard  v.  Lutwidge  414 
Shuttleworth  v.  Garnet  436 
Shipbrook,  Lord,  v.  Lord 

Hinchinbrook         485,  486 
Shakeshaft,  ex  parte  488 

Shatter  v.  Friend  494 

Silberschild  v.  Schiott  189 
Sibley  v.  Cooke  304 

Sibthorp  v.  Moxam  304.  307 
Sikes  v.  Snaith  2 

Simmons  v.  Gutteridge  349 
Skinner  v.  Sweet  424 

Slaughter  v.  May  103. 404 
Slanning  v.  Style       227.  481 


TAUEE    OF   CASES    CITED. 


XXXI 11 


Page 

Sleech  v.  Thorington         301, 

302.  323.  340 

Slingsley  v.  Lambert  437 

Smell  v.  Dee       171.305.312. 

324 
Smith's  Case  105 

Smith  v.   Milles  45.  74 

v.  Barrow  48.  162.  439 

v.  Tracey  91.  137 

v.  Smith    102.  172.  471 

V.Gould  151 

v.  Partridge  172 

v.  Haskins         270.  289 

v.  Harman         283.  443 

v.  Eyles  290 

v.  Campbell       300.  386 

v.  Fitzgerald  303 

v.  Norfolk  436 

Smithley  v.  Chomeley  46 
Snape  v.  Norgate  447 

Snelling  v.  Norton  281 

Snelson  v.  Corbet  .    2S0,  231. 

422 
Soan  v.  Bowden  and  Eyles  286 
Solley  v.  Govver  288 

Sorrell  v.  Carpenter  269 

Southby  v.  Storehouse  9 

Southcot  v.  Watson    18.  352, 

353 
Southampton,   Mayor  of, 

v.  Graves  466 

Southouse  v.  Bate  353 

Sparrow  v.  Hardcastle  21,  22 
Sparks  v.  Crofts  406,  407 
Spencer's  Case  390 

Spinksv.  Robins  329.  337 
Sprange  v.  Stone  18 

Spurstow  v.  Prince  158.434 
Squib  v.  Wyn  .     115.  372 

Squier  v.  Mayer  197 

Stackpoole  v.  Howell  347 

Stafford,  Earl,  v.  Buckley  178. 

200 
Stanley  v.  Stanley  91.  382 
Stanley  v.  Potter  331 

Stanton  v.  Polatt  394 

Stapleton  v.  Cbeales  171,172 
Stapleton  v.  Cheele    171.  305 


Page 
St.  Alban's,  Duke  of,  V. 

Bcauclerk  335 

Startup  v.  Dodderidge         494 
Stasby  v.  Powell  270 

Steadman  v.  Palling  171 

Steel  v.  Roke  269 

Stephens  v.  Totty  320 

Stent  v.  Robinson  326 

Stirling  v.  Lidiard  22 

St.  John,  Lord,  v.  Brand- 
ring  433 
St.  John's,  Lord,  Case  134 
St.  Legar  v.  Adams  77 
Stockdale  v.  Bushby  300 
Stodden  v.  Harvey  255 
Stokes  v.  Porter  38 
Stone  v.  Forsyth  9 
Stonehouse  v.  Uford  278 
Stonehouse  v.  Evelyn  2.  323 
Strathmore,  Countess  of, 

v.  Bowes  26.  217 
Strata,  Case  of  Abbot  of,  ib. 
Strange  v.  Harris  481 
Stukely  v.  Butler  ICO 
Sudgrove  v.  Bailey  234 
Sutton  v.  Sharp  483 
Sutton  v.  Sutton  14 
Swallow  v.  Emberson  444.471 
Sweetland  v.  Squire  286 
Swift  v.  Gregson  319 
Swift  v. -Roberts  1.  21,  22.28 
Sympson  v.  Hornsby  27 
Syms  v.  Syms  129 
\s  Case                           155 

T. 

Talbot  v.  Duke  of  Shrews- 
Tankerville,  Earl  of,   v. 

Fawcet  419 

Tappenden  v.  Walsh  11 

Targus  v.  Pugot  172 

Tasker  v.  Burr  141 

Tate  v.  Hibbert  234,  235,236 
Tate  v.  Austen  339 

Tattersall  v.  Howell  314 

bury  336,  337 
Taylor  v.  Acres  386 
v.  Allen  358 


XXXIV 


TAULE  OF    CASES    CITED. 


Page 
Taylor  v.  Shore  99.  124 

Tebbs  v.  Carpenter  426 

Ten-ewes!  v.  Featherby  455 
Teynham,  Lord,  v.  Webb  173 
Thcllusson  v.  Woodford  330. 

373 
Thomas  v.  Davies  55 

v.  Butler    82.  98.  105. 

117.  125.  127.  129 

v.  Kemish  182 

v.  Bennett     227.  337 

v.  Thomas  319 

■  v.  Ketteriche  385 

Thomson  v.  Butler       99.  121 

v.  Dovve  173 

Thompson  v.  Stanhope  454 
Thorald  v.  Thorald  57 

Thornard,  Earl  of,  v.  Earl 
of  Suffolk  331.339 

Thorne  v.  Watkins  387 

Thorn  borough  v.  Baker      187 

Thrustoutv.  Coppin      91.241 

Thynn  v.  Thynn 

Tidwell  v.  Ariel 

Tiffin  v.  Tiffin 

Tilney  v.  Norris 

Tipping  v.  Tipping  230,  231. 

421,422 
Tissen  v.  Tissen  326 

Tomkyns  v.  Ladbroke      391. 


295 
303 
396 
456 


Tomlinson  v.  Dighton 
v.  Ladbroke 


395 
414 
421 
304 
321 
94.  108 
172 


Toplis  v.  Baker 
Toulson  v.  Grout 
Tourton  v.  Flower 
Tourney  v.  Tourney 
Townshend,    Lord,     v. 

Windham        227.  231.  422 

Tower  v.  Lord  Rous  417 

Trevelyan  v.  Trevelyan  14 

Tredway  v.  Fotherly  186 

v.  Bourn  321 

Tie vi ban  v.  Lawrence  429 

Trevinian  v.  Howell  463 

Trimmer  v.  Bayne  421 

Trower  v.  Butts  300 

Tucker  v.  Thurston  21 


Page 
Tudor  v.  Samayne  217 

Tuff'nell  v.  Page  6 

Tulk  v.  Houlditch  306 

Tunstal  v.  Bracken    172.  305 
Turner  v.  Davies  131 

v.  Crane  187 

v.  Turner       258.  480 

v.Jennings  339 

Turner's  Case  185 

Turner's,     Sir    Edward, 

Case    '  217 

Twaites  v.  Smith  56 

Tweedle  v.   Coverley         417 
Tweddle  v.  Tweddle  419 

Tyntv.  Tynt  230,231 

Tyrrell  v.  Tyrrell     324,  325, 

326 

U. 

Underwood  v.  Stephens  485 

Upton  v.  Prince  318 

Urquhart  v.  King  352 

Utterson  v.  Utterson  28 


Van  v.  Clark  171,  172 

Vanthieuson  v.  Vanthieu- 

son  118 

Vaux  v.  Henderson  304 

Vavvson  v.  Jeffery  21 

Vernon  v.  Vernon  208 

v.  Bethell  314 

Vigrass  v.  Binfield  480 

Villiers  v.  Villiers 

Villa  v.  Dimock  34 


W. 


475 


Wads  worth  v.   Gye 
Wainwright    v.    Bend- 

lowes  417 

Walcot  v.  Hall  171 

Walker  v.  Woollaston  31.  98. 

102.  105.257.  403,  404. 

406.  447 

Walker  v.   Wiffer  266 

v.  Smallwood         269 

v.   Shore  326 

v.  Meager  414 

v.   Jackson  417 


TA14LK    OF    CASKS    CITED. 


XXXV 


Page 
Walker  v.  Walker  2 

Wall  v.   Bushby        483.  486 
Wall  v.  Thurbornc  319 

Wallace  v.   Pomfret  337 

Wallis  v.  Hodgson  373 

Wallis  v.   Bright  322 

Wallop  v.   Irwin  443 

Walrond  v.    Fransham      438 
Walsh  v.   Walsh  374 

Walsam  v.  Skinner  3 

Walter  v.   Hodge  232 

Walton  v.  Walton      354.  376 
Wankford  v.  Wankford      42. 
44,45.48.91.95.  114, 
115.241.297.347.349. 
357.434.437 
Warde  v.  Warde  6 

Ward  v.  Moore  21 

Ward  v.   Turner       234,235, 

236 
Ward    v.    Lord    Dudley 

and  Ward  419 

Ward  v.   Lant  329.  378 

Waring  v.   Ward  328 

Waring  v.  Danvers  183.  288, 
289,  290.  297 
173 
410 
90 
437 
34 
173 


Warr  v.   Warr 
Warren  v.  Statwell 
Warwick  v.  Greville 
Wate  v.  Briggs 
Watford  v.  Masham 
Watkins  v.  Cheek 
Watson  v.   Earl  of  Lin 

coin 
Watt  v.  Watt 
WTebb  v.   Webb 
Webb  v.   Jones 
Webster  v.    Webster 
Wells  v.    Fydell 
Wells  v.  Williams 


329 
84 


340.  390 

417 

343 

472 

12.  31. 

34 

454 

2 


West  v.   Skip 
Westbeech  v.  Kennedy 
Westfaling   v.     Westfal- 

ing  409 

Weston  v.   Poole  440 

Weston  v.   James    265.  442, 

443 


Page 
West  cot  v.  Gottle  470 

Westley  v.    Clarke  484 

Wetherby  v.  Dixon  329 

Whale  v.  Booth  134.  256 

Wheeler  v.  Sheer  350.  352 
Wheatley  v.  Lane  •  428 
Whitchurch  v.  Whit- 
church 6 
Whitchurch  v.  Baynton  284 
White  v.   Driver  8 

v.  Barford  18 

v.  Evans  360 

v.   Williams  352 


Whitehall  v.  Squire  154.  472 
Whithill  v.  Phelps  391 

Whitman  v.  Wild  173.  357 
Whytmore  v.  Porter  367 
Widdowson  v.  Duck  480 
Wishtman    v.    Townroe 

and  others  474 

Wilcocks  v.  Wilcocks       386. 

393 
Wilford,  Chamberlain  of 

London  201 

Wilkinson  v.  Miles  390 

Wilks  v.  Steward  428 

Willand  v.  Fenn  407 

Willats  v.  Cay  320 

Williams  v.    Owen  25 

v.   Crey  158 

v.   Cary      433,434 

ex  parte  454 

Willing  v.  Baine  304 

Willis  v.  Brady  359.  361 

Willoughby  v.  Willough- 

by  410.  426 

Wilson  v.  Pateman  121 

v.   Spencer  173 

v.   Harman  210 

v.   Fielding  284.  415. 

420 

v.   Ivat  361 

v.  Poole  440 

Wirichelseaj   Earl  of,   v. 

Norcliffe  91.  115.182.  373 
Winchcombe  v.   Bishop 

of  Winchester  283.  425 
Wind  v.  Jekyl  1.  2.  478 


XXXV I 


TABLE  Ol'  CASES  CITED. 


Page 
187 
14 
182 
394 


Winn  v.  Littleton 
Winsor  v.  Pratt 
Witter  v.  Witter 
Wood  v.  Briant 
Woodhouselee,  Lord,  v. 

Dalrymple 
Woodward       v.       Glas- 

brook 
Woodward  v.   Parry 
Woodroffe  v.  Wickworth  385 
Worsley  v.  Earl  of  Scar- 
borough 269,  270 
Wortbington  v.  Barlow     464 
Worthington  v.  Evans 
Wright  v.   Woodward 
v.  R utter 


3C0 

302 
219 


v.  Lord  Cadogan 

v.  Bluck 


313 
289 
321 
337 
495 


Wright,  executors  of, 

'Nutt 
Wyllet  v.   Sanford 
Wynch  v.  Wynch 
Y 

Yard   v.  Eland 

v.  Ellard 

Yare.v.  Harrison 
Yaites  v.  Gough 
Yate  v.  Goth 
Yates  v.  Gough 

, v.   Phittiplace 

Young  v.  Case 

v.  Holmes 

_ — — v.  Radford 

Z 
Zachariah  v.  Page 


Page 

443 
17 

325 

241 
241 
480 
449 
447 
449 
172 
67 
344 
217 

439 


INDEX 

TO  THE  CASES  CITED  OR  INTRODUCED 

BY   THE   AMERICAN    EDITOR. 


Note. — "v."  follows  the  name  of  the  plaintiff, — "and"  the  name  of  (lie 

defendant. 

A. 

Page 

Adams  and  Hutchins  (3  Greenl.  Rep.  174)            -                    .  .  437 

and  Sword's  Lessee  (3  Yeates,  34)         ....  30." 

Adcock  and  Campbell,  Register  &c.   (8  Serg.  &.  Rawle,  132)      .  -  249 

Alexander  and  Dade  (1  Wash.  Rep.  30)                    -                    .  .  223 

Albright  and  Simon  (12  Serg.  &  Rawle,  429)            -                 .  -  444 

Allison  V.  Wilson's  Ex.  (13  Serg.  &.  Rawle,  330)               -  .  413 
Anderson  v.  Neff  (11  Serg.  &  Rawle,  208)           -                ...  456 

Andrew  v.  Gallison  (15  Mass.  Rep.  325)          -  242 

Anonymous  (1  Hayw.  Rep.  355)                     -                 .                 .  108 

Anonymous  (1  Hayw.  243)              -                     -                     .  287 

Ansart  and  Cob  urn  (3  Mass.  Rep.  318)               -             -             .  -     48 

Archer  and  Hood  (1  M 'Cord's  Rep.  225,  477)         -                 -  -     10 

Armstrong  v.  Si monton  (2  Tayl.  Rep.  266)             -                -  -  219 

Arndtv.  Arndt  (1  Serg.  8c  Rawle,  256)              -             -                 -  -       2 

Arnold  v.  Nussear  (13  Serg.  &  Rawle,  323)             -               -  -       8 

Ash  and  Legare  (1  Bay,  464)                    -             -                 .  -     14 

and  Patton  (7  Serg.  &.  Rawle,  116)                     -                .  .  456 

Austen  and  Trecothick  (4  Mason's  Rep.  16)         -            •          -  .72 

Austin  v.  Gage  (9  Mass.  Rep.  395)                 -  416 

Ayre  and  Fitch  (2  Conn.  Rep.  143)                -                    .  .  225 

Ayres  and  Toland  (7  Harr.  &  Johns.  3)  .  437 

B. 

Bacon's  Adm.  and  Giles  (4  Harr.  &  Gill.  164)         ■              .  .  463 

Bacon's  Legatees  and  Lewis's  Ex.  (3  Hen.  &  Munf.  89)           -  .  287 

Bainbridge  and  Perkin  (3  Phill.  Rep.  322)         -                 -  -     15 

Baker  and  Johnson  (2  Carr.  &  Payne,  207)                      -  -  245 

and  Williams  (2  Car.  Law  Rep.  599)                -                 -  -       8 


Ballard  and  Henry  (2  Car.  Law  Rep.  595) 


XXXV111        .  TABLE   OF 

Page 

Banks  v.  Marksbery  (3  Litt.  Rep.  281)         -                 -  -         -  219 

Barclay  and  M'Neilledge  (11  Serg.  &.  Rawle,  103)             -  -  300 

Barker  and  Shult  (12  Serg\  &  Rawle,  272)  -             -  206 

Bartlett  and  Weeden  (1  Munf.  123)                -                     -  -4 

Barrett  v.  Barrett  (4  Desaus.  Rep.  452)                     -  -  225 

Bass  and  Winship  (12  Mass.  Rep.  199)                 -  -                 -  350 

Bayard  and  Gratz  (11  Serg.  &  Rawle,  41)          -  .                   166 

Beach  and  Hurst  (5-Madd.  Rep.  351)                     -  -                 -234 

Beach  v.  Lee  (2  Dall.  257)         -                -                    -  -  219 

Bell  v.  Newman  (5  Serg.  &  Rawle,  78)                  -  -  455 

Beltv.  Belt  (1  Harr.  &  MTIen.  409)               -                     -  -     16 

Bennett  v.  Jackson  (2  Phill.  Rep.  190)                       -  -       4 

Benson  v.  Le  Roy  (3  Johns.  Cha.  Rep.  651)           -  -  413 

and  M'Whorter  (1  Hopk.  Cha.  Rep.  28)  456 

Benson,  Adm.  v.  Rice  (2  Nott  &  M'Cord,  577)         -  -  129 

Bernard  and  Jet,  Ex.  (3  Call's  Rep.  11)  -         -339 

Beyan  v.  Taylor  (7  Serg.  &  Rawle,  397)             -  -                -  382 

Bevans  v.  Briscoe  (4  Harr.  &.  Johns.  139)                          -  -  204 

Bickle,  Adm.  v.  Young  (3  Serg.  &,  Rawle,  235)  -         -  146 

Biddle  and  Powell  (2  Dall.  Rep.  85)             -                     -  -  300 

v.  Wilkins  (1  Peters'  S.  C.  Rep.  686)            -  -            -  437 

Bitzer's  Ex.  v.  Hahn  (14  Serg.  &  Rawle,  232)             -  -             -  324 

Black's  Ex.  and  Pringle  (2  Dall.  97)               -                     -  -  477 

Blane  and  AVatson's  Adm.   (12  Serg.  &  Rawle,  131)          -  -158 

Blatchford  and  Murray  (1  Wend.  583)               -             -  -             -  359 

Blewit  and  M'Caw  (2  M'Cord's  Cha.  Rep.  102)             -  -            -  380 

Blount  and  M'Callup  (Cam.  &  Norw.  96)             -             -  -219 

Bohn  v.  Headley  (7  Harr.  &.  Johns.  257)             -  -  219 

Boileau  and  Vansant  (1  Binn.  444)             -                       -  -       2 

Boiling  and  Fleming  (3  Call.  75)             -                 -  -               -  350 

Bonsall  and  Lehman  (1  Addam's  Rep.  389)             -  -       4 

Bordeu  v.  Borden  (4  Mass.  Rep.  67)               -                     -  -  108 

Borland  and  Reed  (14  Mass.  Rep.  208)             -                    -  -     16 

Bostwick,  matter  of  (4  Johns.  Cha.  Rep.  102)               -  -             -  327 

Boston,  selectmen  of,  v.  Boylston  (2  Mass.  Rep.  384)  -  108 

Boudinotv.  Bradford  (2  Yeates,  170.   2  Dall.  Rep.  266)  2.  14.  355 

and  Bradford  (3  Wash.  C.  C.  Rep.  122)  -  131 

Boylston  and  Selectmen  of  Boston  (2  Mass.  Rep.  384)  -             -  108 

and  Dawes  (9  Mass.  Rep.  337)             -                     -  -  108 

Bradford's  Administrators,  Case  of  (P.  A.  Browne's  Rep.  87)  -  129 

Bradford  and  Boudinot  (2  Yeates,  170.  2  Dall.  Rep.  266)  2.  14.  355' 

v.  Boudinot  (3  Wash.  C.  C.  Rep.  122)  -               -  131 

Bradley  v.  Overhoudt  (13  Johns.  Rep.  404)             -  -          -  198 

Brady  and  Jamison  (6  Serg.  &.  Rawle,  466)             -  -               .  225 

Brailsford  and  Johnson  (2  Nott  &  M'Cord,  272)         -  -     1 2 

Brattle  v.  Gustin  (1  Root.  425).              -                     -  -             .116 

v.  Converse  (1  Root.  174)             -                       -  -             -  116 

Bray  and  Hall  (Cox's  N.  J.  Rep.  212)                                   .  .     25 

Bray  v.  Dudgeon  (6  Munf.  Rep.  132)             -                     .  -     85 

Brayfield  v.  Brayfield  (3  Harr.  h  Johns.  208)                -  -      2 


AMERICAN  CASES.  XXXIX 

Page 
Breed  and  Osgood  (12  Muss.  Rep.  532) 

Brehman  and  Weishaupt  (5  Binn.  118)  -  303 

Brent  v.  Dodd  (Gilm.  Hep.  211)             -  -         -     14 

Brewster  v.  Hill  (1  New  llamp.  Rep.  350)  -       6 

Briscoe  arad  Bevans  (4  Harr.  &  Johns.  139)  -                -203 

Bronson  and  llammick  (5  Day's  Rep.  294)  -            -  220 

Brooks  v.  Floyd  (2  M'Cord's  Rep.  364)                 -  -  437 

Brough  and  Moritz  (16  Serg.  &  Rawle,  403)  -         -     15 

Brown,  Ex.  of  Edgar's  Appeal  (1  Dall.  311)  -                              -  484 

Brown,  Ex.  v.  Lambert  (16  Johns.  Rep.  148)  -                         -  440 

Brown's  Ex.  v.  Tilden  (5  Harr.  &  Johns.  371)  -                     -         -.     2 

Brown's  Adm.  v.  Griffith  (6  Munf.  450)         -  -                     -  287 

Brown  and  Hylton  (1  Wash.  C.  C.  Rep.  299)  -      2 

and  Hawley  (1  Root's  Rep.  494)             -  -                 -       2 

Brush  v.  Wilkins  (4  Johns.  Cha.  Rep.  506)  -  -  -  17 
Bryan  and  The  Commonwealth  of  Pennsylvania  (8  Serg.  &  Rawle,  128)  249 
v.  M'Gee  (2  Wash.  C.  C.  Rep.  337) 


108 

Bull  and  Malin  (13  Serg.  &  Rawle,  441)  -  462 

Burch  and  Scott  (6  Harr.  8c  Johns.  67)                     -  -          -  129 

Burgwin  v.  Hostler's  Adm.  (Tayl.  Rep.  124)  -         -  474 

Burley  and  Carlisle  (3  Greenl.  Rep.  250)                -  -                 -  437 

Burns  v.  Burns  (4  Serg.  &  Rawle,  297)             -  12.  14. 

Butts'  Adm.  v.  Price  (Cam.  8c  Norw.  68)  -                     -  108 

Byrne's  Adm.  v.  Stewart  (3  Desaus.  Rep.  135)         -  -  219 

Byrne  v.  Byrne  (3  Serg.  8c  Rawle,  54)            -  -  337 

c. 

Callaghan's  Adm.  and  Hall  (1  Serg.  &.  Rawle,  241)  -        -        -  486 

Call  v.  Hardy  (16  Mass.  Rep.  530)                  -  -                     -    440 

Campbell,  Register  8cc.  v.  Adcock  (8  Serg.  8c  Rawle,  132)  -  249 

Campbell's  Ex.  v.  Sullivan  (Hard.  Rep.  17)             -  -              287 

Carlisle  v.  Burley  (3  Greenl.  Rep.  250)  -            -  437 

Carrington  and  Nelson  (4  Munf.  332)             -  ...  362 

Carson's  Ex.  and  Stuart  (1  Desaus.  Rep.  501)             -  -         301.339 

Chamberlin  and  Grout,  Adm.   (4  Mass.  Rep.  611)  -                 -  448 

Champlin  v.  Tilley  (3  Day's  Rep.  303)  -  108 

Chandler's  Ex.  v.  Neal's  Ex.  (2  Hen.  8c  Munf.  124)  -                -  287 

Chapel  and  Talmadge  (16  Mass.  Rep.  71)             -  -  108 

Chapman  v.  Gray  (15  Mass.  Rep.  439)            -  -       6 

Chew's  Ex.  and  Griffith  (8  Serg.  8c  Rawle,  29)             -  -        -  296 

Cist  and  Reed  (7  Serg.  8c  Rawle,  183)               -  -  158 

Clark  and  Hogeboom  (17  Johns.  268)             -  •-                   -440 

and  Gleason  (1  Wend.  Rep.  303)             -  -                -  440 

and  Kirby  (1  Root,  389)            -  -  432 

v.  Herring  (5  Binn.  33)             -                     -  -             -  464 

Clarkson  and  Loocock  (1  Desaus.  Rep.  471)  -            -  301 

Class  and  Hawkins  (1  Bibb's  Rep.  246)             -  -  460 

Clemson  and  Pusey  (9  Serg.  8c  Rawle,  208)  -  347 

Coates  v.  Hughes  (3  Binn.  498)         -  -     l7 


xl  Stable  of. 

Page 

Coburn  v.  Ansart  (3  Mass.  Rep.  318)             -             .                     *  48 

( 'or bran's  Will,  Case  of,  (3  Bibb's  Rep.  491)                     -  .       2 

Cog-bill  v.  Cogbill  (2  Hen.  St  Munf.  467)                                      -  -     15 

Cog-dell's  Ex.  v.  Cog-dell's  Heirs  (3  Desaus.  Rep.  387)        .-  -  32jJ 

Collins  v.  Weiser  (12  Serg\  &  Rawle,  97)             -                      -  463 

Collins's  Ex.  and  Woodbury  (1  Desaus.  Rep.  425)                -  .  299 

Coleman,  Adm.  v.  M'Murdo  (5  Rand.  Rep.  51)         -                     -  450 

Colg-in  and  Hendren  (4  Munf.  Rep.  231)         -                     -  -     84 

Commonwealth  (of  Virginia)  «nc?Nimmo's  Ex.  (4  Hen.  &.  Munf.  57)  139.413 

(of  Pennsylvania)  v.  Rahm,   (2  Serg.  &  Rawle,  375)       146 

: v.  Shelby  (13  Serg.  &  Rawle,  348) 

301.  418 

v.  Bryan  (8  Serg.  &  Rawle,  128)  -  249 

v.  King  (4  Serg.  &  Rawle,  109)  -  470 

Cooke  and  Eee's  Ex.   (Gilm.  Rep.  331)  -  ...  460 

Cooper  v.  Remsen  (3  Johns.  Cha.  Rep.  382)             -                     -  314 

Corbin  and  Burwell  (1  Rand.  Rep.  131)             -  2 

Cornell  v.  Green  (10  Serg.  &  Rawle,  14)                                     -  158 

Cox  and  Minuse  (5  Johns.  Cha.  Rep.  450)                 -                     -  -     22 

Cradock  and  The  State  of  Maryland  (7  Harr.  &  Johns.  40)     -  -  405 

Craighead  v.  Given,  Adm.  (10  Serg.  h  Rawle,  351)                  -  -  342 

Crane  and  Ford  (1  Cow.  Rep.  71)                 -                    -  -  467 

Crary  and  Williams  (8  Cow.  Rep.  246)                 -                    -  -  336 

Crofton  v.  Ilsley  (4  Greenl.  Rep.  134)             -                     -  -    72 

Cross  v.  Gibbons  (2  Addam's  Rep.  455)                 -                     -  -     17 

Crozier  v.  Gano  (1  Bibb's  Rep.  257)               -                     -  -219 

Cruger  v.  Heyward  (2  Desaus.  -Rep.  84)                 -                     -  326 

Cummin  and  Sheble  (1  P.A.Browne's  Rep.  253)             -  -  219 

Cunliff  and  M'Pherson  (11  Serg.  &  Rawle,  422)             -  -  146 

Curtis  v.  The  Bank  of  Somerset  (7  Harr.  &  Johns.  25)             -  -  463 
Cutchin  v.  Wilkinson  (1  Call's  Rep.  3)              -                     ...     85 

Cuthbert  and  Heyward  (4  Desaus.  Rep.  445)             -                 -  326 

Cuthbert  v.  Cuthbert  (3  Yeates,  486)             -                    -  -  301 

D. 

Dade  v.  Alexander  (1  Wash.  Rep.  30)                                          -  -  223 

Dale  v.  Roosevelt  (8  Cow.  Rep.  333)                              -                   -  -  448 

Damon  and  Stone  (12  Mass.  Rep.  488)            -                     -  -9 

Dandridge  v.  Minge  (4  Rand.  Rep.  397)                       -                     -  284 

Davenport  and  Lawrason  (2  Call's  Rep.  95)                          -  -  341 

Davis  v.  Davis'  Ex.  (3  Binn.  566,  cited)                       -                     -  -  355 

Davis  and  Havard.(2  Binn.  406)                       -                     -  -     14 

and  Peters  (7  Mass.  Rep.  257)                      -                    -  -  162 

Davoue  v.  Fanning  (2  Johns.  Cha.  Rep.  252)             -                 -  362 

Dawes,  Judge,  &c.  v.  Boylston  (9  Mass.  Rep.  337)                           -  -  108 

Dawes  v.  Swan  (4  Mass.  Rep.  215)                            -                     -  324- 

Dean,  Ex.  v.  Littlefield,  (1  Pick.  Rep.  239)                         -  -       8 

De  Besse  v.  Napier  (1  M'Cord's  Rep.  107)                                       -  -     39 

Den  v.  De  Hart  (1  Halst.  Rep.  450)                -                    -  -  464 


AMERICAN  CASES.  xll 

Page 

I)e  Hart  and  Den  (1  Halst.  Rep.  450)                 -  ■                    -  464 

Deklyne  and  Krider  (13  Serg.  and  Rawle,  147)  -                     -  441 

Delavan  and  Pope  (1  Wend.  Rep.  68.)           -  -                     -  467 

Dewitararf  Green  (1  Root,  183)                       -  -                    -  242 

v.  Yates  (10  Johns.  Rep.  156)                -  -                     -  334 

Dickey  and  Morrell  (1  Johns.  Cha.  Rep.  153)              -  1.  108.  314 

Dickinson  v.  M'Craw  (4  Rand.  Rep.  158)  -  108 

v.  Purvis  (8  Serg.  &  Rawle,  81)                 -  -                303 

Dieser,  Adm.  v.  Sterling  (10  Serg.  &  Rawle,  119)  -                    -  441 

Dietrick  v.  Dietrick  (5  Serg.  &  Rawle,  207)  -                     -       8 

Digges'  Lessee  v.  Jarman,  (4  Harr.  Sc  M'Hen.  485)  -             -  362 

Dillingham  and  Sears  (12  Mass.  Rep.  358)              -  2 

Dixon's  Ex.  v.  Ramsay's  Ex.  (3  Cranch,  319)             -  -            -  108 

Dodd  and  Brent  (Gilm.  Rep.  211)                   -                -  -            -     14 

Doe  v.  Teage  (5  Barn,  and  Cresw.  335)               -  -                             2 

Doolittle  v.  Lewis  (7  Johns.  Cha.  Rep.  45)              -  -             .  108 

Dornick  v.  Riechenback  (10  Serg.  and  Rawle,  84)  -                       9 

Dorsey  v.  Smithson  (6  Harr.  and  Johns.  61)  -                      -    39 

Dougherty  v.  Snyder  (15  Serg.  and  Rawle,  84)  -                -  227 

Douglass  and  Stanet  (2  Yeates,  48)                      -  -                -      9 

Draper  v.  Jackson  (16  Mass.  Rep.  480)             -             -  '  -            -  220 

Drayton  v.  Drayton  (2  Desaus.  Rep.  250)  -                       -  362 

v.  Shoolbred  (2  Desaus.  Rep.  246)  -                      -  362 

Drum's  Lessee  v.  Simpson  (6  Binn.  478)            •  -                           2 

Duffield  and  Swift  (5  Serg.  and  Rawle,  40)           -  -              30.300 

Dukehart's  Ex.  v.  The  State  (4  Harr.  and  Johns.  506)  -            -  140 

Dumond  v.  M'Gee,  (4  Johns.  Cha.  Rep.318)               -  -             .220 

Duncan  v.  Walker  (2  Dall.  205)                          -  -                   -  386 

Dunch  and  M'Comb  (2  Dall.  73)                       -  -                     -477 

Dunham  and  Mason  (1  Munf.  456)                      -  -                           4 

Dunlap  v.  Dunlap  (4  Desaus.  Rep.  305)                 -  -     '               2.  25 

Durant  v.  Starr  (11  Mass.  Rep.  227)                         -  -         .    -       2 

Dyke's  v.  Woodhouse's  Adm.  (3  Rand.  Rep.  288)  -             -  352 

E. 

Eckart  and  Grasser  (1  Binn.  575)                     -  -  •                   -  352 

Edelen  v.  Hardy's  Lessee  (7  Harr.  and  Johns.  61)  -       2 

Elbeck  v.  Cranberry  (2  Hayw.  Rep.  232)          -  -                             2 

Elms,  Ex  parte  (3  Desaus.  Rep.  155)                 -  -                   -  219 

Elton  and  Nicholson  (13  Serg-.  and  Rawle,  416)  -                       -  461 

Emerson  and  Union  Bank  (15  Mass.  Rep.  159)  -                        -  198 

Eppes  and  Royal  (2  Munf.  479)             '  -                 -  -                 -  122 

Evans,  Adm.  v.  Pierson  (1  Wend.  Rep.  30)  -                     -  463 

and  Eritez  (13  Serg.  and  Rawle,  1)  410 

v.  Kingsbury  (2  Rand.  Rep.  120)                    -  -  213 

v.  Tatem  (9  Serg.  jpdtlawle,  252)               -  -             -  108 

Eyre  v.  Golding  (5  Binn.  475)                             -  -                     -  324 

Eyster  v.  Young  (3  Yeates,  511)             -                -  -                       2 


Xlll  TABLE  Ul 

F, 

Page 

Fabre'sEx.  and  Higginson  (  3  Desaus.  Rep.  93)                    -  .31 

Fanning  and  Davoue  (2  Johns.  Cha.  Rep.  252)                 -  -  362 

Fenwickv.  Sears  (1  Cranch,  259)               -  -108 

Ferris  and  Jackson  (15  Johns.  Rep.  348)                -  -  362 

Fisher  and  Ware's  Lessee  (2  Yeates,  578)  -  386 

Fishvvick's  Adm.v.  Sewell  (4  Harr.  and  Johns.   39S)  -432 

Fitch  v.  Ayre  (2  Conn.  Rep.  143)                       -                   -  -225 

Fitzsimons  and  "Wallace  (1  Dall.  162)                   -  -  162 

Fleming  v.  Boiling  (3  Call.  75)                      -  -  350 

Flintham's  Appeal  (11  Serg.  and  Ravvle,  16)  245.  480 

Floyd  an d  Brooks  (2  M'Cord's  Rep.  364)  -  437 

I^onda  and  Van  Home  (5  Johns.  Cha.  Rep.  388)  -    42 
Ford  v.  Gardner  (1  Hen.  and  Munf.  72) 

Forbes  v.  Pierie  (1  Harr.  and  Johns.  109)         -  -  463 

Frazier  and  Griffith  (8  Cranch,  9)  -  104 

v.  Tunis  (1  Binn.  254)                       -  -  283 

Frink  v.  Luyten  (2  Bay,  166)                    -  -  440 

Fritz,  Ex.  v.  Evans  (13  Serg.  and  Rawle,  1)  -  410 

G. 

Gage  and  Austen  (9  Mass.  395)                     -                      -  -  416 

Gage  v.  Johnson's  Adm.  (1  M'Cord's  Rep.  492)  -  407 

Gaines  v.  Gaines  (2  Marsh.  Rep.  190)         -  -     16 

Galbraith  arid  M'Neilledge  (8  Serg.  and  Rawlc,  41)  -  300 

Gale  v.  Ward  (14  Mass.  Rep.  352)                      -                       -  .  -  198 

Gallison  and  Andrew  (15  Mass.  Rep.  325)                 -                 -  -  242 

Gano  and  Crozier  (1  Bibb's  Rep.  257)                   -                 -  -  219 

Gardner  and  Ford  (1  Hen.  and  Munf.  72)                 -  -     77 

v.  Parker  (3  Madd.  Rep.  184)             -  -  234 

Cay,  Ex  parte  (5  Mass.  Rep.  419)             -  -       6 

Gaylord  and  Stephens  (11  Mass.  Rep.  369)         -  108.  347 

Geer  v.  Winds  (4  Desaus.  Rep.  85)  -  300 

Gelback's  Appeal  (8  Serg.  and  Rawle,  205)  -  182 

Genet  v.  Tallmadge  (1  Johns.  Cha.  Rep.  3)  -  314 

Geyer  v.  Smith,  (1  Dall.  Rep.  347)             -                                 -  -  463 

Gibbons  v.  Cross  (2  Addam's  Rep.  455)                   -  -     17 

Giles  v.  Bacon's  Adm.  (1  Harr.  and  Gill.  164)                      -  -  463 

Giles's  Heirs  v.  Giles's  Ex.  (Cam.  and  Now.  Rep.  174)  -     14 
Gihnan  and  Sabin  (Adams'  Rep.  198)              -                 -                 -         -  10S 

Gillon  v.  Turnbull  (1  M'Cord's  Cha.  Hep.  148)  -  323 

Girard  v.  M'Dermott  (6  Serg.  and  Rawle,  128)                     -  -  146 

Given,  Adm.  and  Craighead  (1  Serg.  and  Rawle,  351)             -  -  342 

Gleason  v.  Clark,  Adm.  (1  Wend  Rep.  303)#                     -  -  440 
Glen  and  Ilaslett's  Adm.  (7  Harr.  and  Johns,  lfj                     -         238.  4^2 

Golding  and  Eyre  (5  Binn,  475)                      -  -  324 


AMERICAN   CASES.  xliii 

Page 
GoM  and  Musscr  (11  Scrg.  and  Rawle,  247)  -  440 
Goodwin  v.  Jones  (3  Mass.  Rep.  .514)  -  -  -  103 
Gordon  and  Wellborn  (1  Murphy,  103)  -  -  -  467 
Govane  v.  Govane  (1  Harr.  and  M'Hen.  346)  -  -  -  8.5 
Graeme  v.  Harris,  (1  Dall.  456)  -  -  108 
Graff  v.  Smith's  Adm.(l  Ball.  481)  -  -  -  145 
Granberry  and  Elbeck  (2  Hayw.  232)  -  -  2 
Granberry  v.  Granberry  (1  Wash.  Rep.  246)  -  346 
Gratz  v.  Bayard  (11  Serg.  and  Rawle,  41)  -  -  166 
Gratz  and  Prevost  (3  Wash.  C.  C.  Rep.  434)  -  456 
Gray  and  Chapman  (15  Mass.  Rep.  439)  -  -  6 
Green  and  M'Kay  (3  Johns.  Cha.  Rep.  57)  -  -  418 
and  Cornell  (10  Serg.  and  Rawle.  14)   .  -  158 

v.  Dewit  (1  Root,  183)                       -  -  242 

Greene  v.  Stone  (1  Harr.  and  Johns.  405)               -  -  464 

Grier  v.  Huston  (8  Serg.  and  Rawle,  402)  ■     48 

Griffith  v.  Frazier  (8  Cranch,  9)                    -                    -  -  104 

and  Hall  (2  Harr.  and  Johns.  283)                            -  -  238 

and  Brown  (6  Munf.  450)                     -                    -  -  287 

v.  Chew's  Ex.  (8  Serg.  and  Rawle,  29)  296.  464 

Grimke  v.  Grimke  (1  Desaus.  Rep.  366)                          -  -     10 

Griswold  v.  Penniman  (2  Conn.  Rep.  564)        '         -  -  220 
Groff  and  President  of  Orphan's  Court  (14  Serg  and  Rawle,  181)        -  146 

Grout,  Adm.  v.  Chamberlin  (4  Mass.  611.)  -  448 

Guage  and  Swann  (1  Hayw.  3)  -  223 

Guier  v.  Kelley  (2  Binn.  298)                       -                       -  -  146 

Guierv.  O'Daniel,  (lBinn.  349)          -                 -                 -  -386 

H. 

Hahn  and  Bitzer's  Ex.  (14  Scrg.  and  Rawle,  232)  -  324 

Hall  v.  Bray  (Coxe's  N.  J.  Rep.  212)                     -  -     25 

v.  Callaghan's  Adm.  (1  Serg.  and  Rawle,  241)                   #'  . .  486 

v.  Griffith  (2  Harr.  and  Johns.  483)                 -  -  238 

v.  Hall  (2  M'Cord's  Cha.  Rep.  304)  -  350 

Hamilton  and  Lodge  (2  Serg.  and  Rawle^  493)                       _-  -  219 

Hammick  v.  Bronson  (5  Day's  Rep.  294)  .           -                      -  -  220 

Hardenburg  and  Ousterhoudt  (19  Johns.  Rep.  267)  -  463 

Hardy  v.  Call  (16  Mass.  Rep.  530)                    -  440 

Hardy's  Lessee  and  Edelen  (7  Harr.  and  Johns.  61)  '  -       2 

Harris  and  Grame  (1  Dall.  456)                                           -  -108 

Harrison  v.  Rowan  (3  Wash.  C.  C.  Rep.  580)  -       2 

Hart  and  Stout  (2  Halst.  Rep.  414)  303 

Hartnessv.  Purcell  (1  Wend.  Rep.  303)  -  466 

Harvey  v.  Richards  (1  Mason's  Rep.  381)  -  38v> 

Haslctt'sAdm.  v.  Glenn  (7  Harr.  and  Johns.  17)  132 

Havard  v.  Davis  (2  Binn.  406)  1  { 

Hawkins  v.  Class  (1  Bibb's  Rep.  216)  -  460 

•  * 


xliv  TABLE    OF 

Page 

Hawkins  and  Turnipseed  (1  M'Cord's  Re]).  272)  -                 .       2 

Haw  ley  v.  Brown  (1  Root's  Rep.  494)                     -  .                  -       2 

Hawthorne  and  Patterson  (12  Serg.  and  Rawle,  112)  -          1/0.  305 
Hays  v.  Jackson  (6  Mass.  Rep.  153)         ....  355 

Haywood  and  Siglar  (8  Wheat.  675)               -  -                    .  456 

Headley  and  Bohn  (7  Harr.  and  Johns.  257)  -                       -  219 

Heager's  Ex.  Case  of  (15  Serg.  and  Rawle,  65)  -                    .  480 

HelmesoW  White  (1  M'Cord's  Rep.  430)             ,  -2 

Hendren  v.  Colgin,  (4  Munf.  Rep.  231)                   -  .                 -     84 

Henry  v.  Ballard  (2  Car.  Law  Rep.  595)  -                 -               ,1 

Hermance  v.  Vernoy  (6  Johns.  Rep.  5)            -  -                     -198 

Herring  and  Clark  (5  Binn.  33)                       -  -                     -464 
Hey  ward  and  Cruger  (2  Desaus.  Rep.  84)               ...  326 

' v.  Cuthbert  (4  Desaus.  Rep.  445)  -                 -           •    .  326 

Hiesler  v.  Knipe  (1  P.  A.  Browne's  Rep.  319)  -             -                 -  359 

Higginson  v.  Fabre's  Ex.  (3  Desaus.  Rep.  93)  -                     -     31 

Hight  v.  Wilson  (1  Dall.  Rep.  94)                        -  -                -      2 

Hill  v.  Hill  (2  Hayw.  Rep.  298)                   -  -                  -             -  355 

and  Brewster  (1  NewHamp.  Rep.  350)  -                        -       6 

Hoare  v.  Mulay  (2  Yeates,  161)                    -  -                        -  464 

Hock  v.  Hock  (6  Serg.  and  Rawle,  47)           -  -                    -      2 

Hodges  and  Nicholls  (1  Peters'  S.  C.  Rep.  562)  -                    -  456 

Hoffman's  Ex.  and  Van  Bramer  (2  Johns.  Ca.  200)  -              -  325 

Hogeboom  v.  Clark  (17  Johns.  268)                    ,  -                -  440 

Holloway  and  Jackson  (7  Johns.  Rep.  394)  -                        -     15 

Holmes  v.  Tremper  (2  Johns.  Rep.  29)  ,     -                      -  198 

Hood  v.  Archer  (1  M'Cord's  Rep .  225.  477)  -                        -     10 

Hornsby  v.  Lee  (2Madd.  Rep.  16)                     -  -•               -219 

Hostler's  Adm.  one?  Burgwin  (Tayl.  Rep.  124)'  -                    -474 

Howell's  Adm.  v.  Smith  (2  M'Cord's  Rep.  516)  -                 -     37 

Hoyle  and  Schuyler  (5  Johns.  Cha.  Rep.  196)  -                -              -220 

Hughes  v.  Hughes,  Ex.  (2  Munf.  209)                     -  -       9 

Hunter  and^T an  Alst  (5  Johns.  Cha.  Rep.  158).  -                     -       9 

Hurst  v.  Beafh  (5  Madd.  Rep.  351)                      -  -               -234 

Hurst's  Ex.  and  Wilson  (1  Peters'  C.  C.  Rep.  441)  -                 -  470 

Huston  and  Grier  (8  Serg.  and  Rawle,  402)           -  -                   -     48 

Hutchins  v.  Adams  (3  Greenl.  Rep.  174)  -                 -             -  437 

Hylton  v.  Brown  (1  Wash.  C.  C.  Rep.  299)         -  -                    -       2 

Hynes  v.  Lewis  (1  Tayl.  Rep.  44)                        -  -                -  219 


I- 

Irwin  and  Larimer's  Lessee  (4  Binn.  104)  -  146 

and  Shields  (3  Yeates,  389)                           -  -                 -       1 

llsly  ourfCrofton  (4  ■Greenl.  Rep.  134)             -  -                        -72 

Ingraham  v.  Postell's  Ex.  (1  M'Cord's  Cha.  Rep.  94)  -               -323 

Izard  v.  Izard  (2  Desaus.  Rep.  123)                     -  .                      -  300 


\MER1CAN    CASES.  \|\ 


Page 
Jackson  v.  Ferris  (15  Johns.  Rep.  348)  -  -  .  362 
and  Hays  (6  Mass.  Rep.  153) 


-  ooo 

and  Bennet  (2  Thill.  Rep.  190)                  -                 .  .4 

v.  Holloway  (7  Johns.  Rep.  394)             -                 -  -14 

v.  Jeffries  (1  Marsh.  Rep.  88)             -                   .  .  108 

• and  Purdew  (1  Russ.  Rep.  1)                 -                     -  .  219 

and  Draper  (16  Mass.  Rep.  480)             -                -  -220 

Jamison  v.  Brady  (1  Yeates,  432)                     -  .  225 

Jaques  and  Methodist  Episc.  Church  (3  Johns.  Cha.  Rep.  77)  227 

Jarman  and  Digges's  Lessee  (4  Hair,  and  M'Hcn.  485)         -  -  362 

Jet,  Ex.  v.  Bernard  (3  Call's  Rep.  11)             -                     .  .  S3'J 

Johnson  v.  Baker  (2  Carr.  and  Payne,  207)                     -  -  246 

v.  Brailsford  (2  Nott  and  M'Cord,  272)                      -  -     12 

Johnson's  Adm.  and  Gage  (1  M'Cord's  Rep.  492)                 -  -  407 

Johnston  and  Pasteur  (Cam.  and  Norw.  464)                       -  -  219 

Jones  and  Goodwin  (3  Mass.  Rep.  514)              -                  .  .  108 

Jordan  and  Southwick  (13  Mass.  Rep.  113)                    -  -*  f22 

K. 

Kain,  Ex.  v.  Ostrander  (8  Johns.  Rep.  159)                 -             -  -  434 

Kelly  and  Guier  (2  Binn.  298)             -                 -                 -  -146 

Kendall  v.  Kendall's  Ex.   (5  Munf.  Rep.  272)  -     27 

Kennedy  v.  Savage  (2  P.  A.  Browne's  Rep.  178)                 -  -  152 

v.  Wachsmuth  (12  Serg.  &  Rawle,  171)                  -  -  146 

Kenney  and  Udall  (3  Cow.  Rep.  590)                   -                 -  -  219 

Keppele  and  Long  (1  Binn.  123)             -                 -                 -  -  474 

Kerns  v.  Sexman  (16  Serg.  &  Rawle,  315)  -  .,  2 
Kerr,  Ex.  and  Moore  (10  Serg.  &  Rawle,  348)              ...  470 

Ken-  v.  Moon  (9  Wheat.  Rep.  565)  -%  -  .  108 
King  v.  Lyman  (1  Root's  Rep.  104)  -  -  .  .  '  39 
King  and  The  Commonwealth  of  Pennsylvania  (4  Serg.  &  Rawle,  109)  475 

Kingsbury  and  Evans  (2  Rand  Rep.  120)  -  -  -  213 
Kintner  and  Messenger  (4  Binn.  97)  ...  146 
Kirby  v.  Clark  (1  Root.  389)                     ....  4.32 

Knipe  and  Hiesler  (1  P.  A.  Browne's  Rep.  319)                '-  -  359 

Knorr  v.  Picket  (4  Desaus.  Rep.  92)                    -                 .  ,  357 

Kvebsand  The  State   (6  Harr.  &  Johns.  31)             -               -     '  -219 

Krider  v.  Deklyne  (13  Serg.  &  Rawle,  147)                         -  -  441 

L. 

Lamar  and  Milledge  (4  Desaus.  Rep.  623)         -                    .  -1 

Lambert  and  Brown,  Ex.   (16  Johns.  Rep.  148)                 -  -  440 

Landis  v.  Urie  (10  Serg.  &  Rawle,  316)                              -  -  4<ft 

Larimer's  Lessee  v.  Irwin  (4  Binn.  104)             -              -  -  116 

I. atiniore  v.  Rogers  (13  Serg.  &  Rawle,  183)         -                 -  -436 

Latimore  v.   Simmons  (13  Serg.  &  Rawle,  185)                 -  -  462 


\lvi                                              TABLE  OF  • 

Page 
Lawrason  v.  Davenport  (2  Call's  Hep.  95)  -  341 
Lawson  v.  Morrison  (2  Dall.  289)  -  -  12 
Lee  and  Beach  (2  Dall.  257)'  -  -  219 
v.  Cooke's  Ex.   (Gilm.  Rep.  331)                     -  -  460 

-  and  Ilornsby  (2  Madd.  Rep.  46)                     -  -                -219 

v.  Sedgwick  (1  Root's  Rep.  52)  ....     89 

v.  Wright  (1  Rawle's  Rep.  151)                -  -            242.364 

Legare  v.  Ash  (1  Bay,  464)                -                  -  -     14 

Lemann  v.  Bonsall  (1  Addam's  Rep.  389)  -      4 

LeRoy  and  Benson  (3  Johns.  Cha.  Rep.  651)  -         -  413 

Levis  and  Lieper  (15  Serg.  &  Rawle,  108)  -  468 

Lewis  Ex.  v.  Bacon's  Legatees  (3  Hen.  &.  Munf.  89)  -  287 

v.  Lewis  (6  Serg.  Sc  Rawle,  489)  -       2 

v.   Maris  (1  Dall.  Rep.  278)                     -  -       2 

and  Hynes  (1  Tayl.  Rep.  44)                  -  -                  -  219 

and  Doolittle  (7  Johns.  Cha.  Rep.  45)                 -  -  108 

v.  Seavcr  (14  Mass.  Rep.  83)                  -  -  418 

Lieper  v.  Levis,  Adm.   (15  Serg.  &  Rawle,  108)  -                    -  468 

Lindsay  v.  Lindsay's  Adm.  (1  Desaus.  Rep.  151)  -                     -  241 

Livingston  v.  Livingston  (3  Johns.  Cha.  Rep.  148)  -                 -     23 

v.  Newkirk  (3  Johns.  Cha.  Rep.  312) 


~oc 


Lloyd's  Lessee  v.  Taylor  (2  Dall.  223)                -  -  362 

Lodge  v.  Hamilton  (2  Serg.  &.  Rawle,  493)  -  219 

Long  v.  Keppele  (1  Binn.  123)                       -     ,                 -  -  474 

and  Rudd  (4  Johns.  Rep.  190)                 -  -  440 

and  Wilson  (12  Serg.  &  Rawle,  58)                     -  -  462 

Loocock  v.  Clarkson  (1  Desaus.  Rep.  471)  -  301 

Lovett  and  Towle '  (6  Mass.  Rep.  394)             -                    -'  -  432 

Ludwig  and  Stoever  (4  Serg.  &  Rawle,  201)  -     90 

Lunt  and  Mitchell  (4  Mass.  Rep.  659)             -  -     40 
Lupton  v.  Lupton  (2  Johns.  Cha.  Rep.  628)                                  -  324.  341 

Luyten  and  Frink  (2  Bay.  166)                      -  -  440 

Lyles  v.  Lyles  (2  Nott  &  M'Cord,  531)  -       1 

Lyman  and  King  (1  Root.  Rep.  104)                -  -     39 

M. 

M'Callup  v.  Blount  (Cam.  &  Norw.  "96)  -  219 
M'Cariy  v.  Nixon  (2  Dall.  65,  «.)  -  -162 
M'Caw  v.  Blewit  (2  M'Cord's  Cha.  Rep.  102)  -  380 
M'Cay  v.  M'Cay  (1  Murphy's  Rep.  447)  -  -  18 
M'Comb  v.  Dunch  (2  Dall.  73)  -  -  -  477 
M'Craw  and  Dickinson  (4  Rand.  Rep.  158)  -  -  108 
M'Cullough  v.  Young  (1  Binn.  63)  -  -  10S 
M'Dermott  and  Cirard  (6  Serg.  &  Rawle,  128)  146 
M'Donald  and  Wagner  (2  llarr.  &  Johns.  346)  58 
M'Dowell  v.  Murdock  (1  Nott  &  M'Cord'^  Rep.  23/)  -  233 
M'Gee  v.  M'Gants  (1  M'Cord,  517)  -  „  1 
and  Dumon  (4  Johns.  Cha.  Rep  218)  220 


AMERICAN  CASES.  xlvii 

Pago 

.M'Gcc  and  Bryan  (2  Wash.  C.  C.  Rep.  337)  -        -  108 

M'Glinscy's  Appeal  (14  Serg.  &  Rawlc,  64)          -  •                 -227 

M'Kay  v.  Green  (3  Johns.  Cha.  Rep.  57)  ...  41 R 

M'Kee  v.  Thompson  (Add.  Rep.  24)         -  ...  464 

M'Murdo  and  Coleman,  Adm.   (5  Rand.  Rep.  51)  -                 -450 

M'Ncilledge  v.  Barclay  (11  Serg.  &  Rawle,  103)  -                 -  300 

M'Neilledge  v.  Galbraith  (8  Serg.  &  Rawle,  41)  -         -  300 

M'Niell  v.  Quince  (2  Hayw.  Rep.  153)                   -  -  464 

M'Pherson  v.  Cunliff  (11  Serg.  &  Rawle,  422)  -         -  146 

M'Pherson  and  Pringle  (2  Desaus.  Rep.  524)         -  -           -     15 

M'Whorter  v.  Benson  (1  Hopk.  Cha.  Rep.  28)  "  -                 -  456 

Malin  v.  Bull  (13  Serg-.  &  Rawle,  441)        '-  -                 -         -  462 

Maris  and  Lewis  (1  Ball.  Rep.  278)                      -  -                -       2 

Mark  and  Roosevelt  (6  Johns.  Cha.  Rep.  266)  -           287 

Marksberry  and  Banks  (3  Litt.  Rep.  281)  -        .  219 

Martin  and  Robinson  (2  Yeates,  525)                      -  .                .  303 

Mason  v.  Dunman  (1  Munf.  456)                -  -                        .4 

Mason  v.  Harrison  (5  Harr.  8c  Johns.  480)  -                        .      2 

Massey  v.  Massey's  Lessee  (4  Harr.  8c  Johns.  141)  -                .     18 

Massey  and  Stone  (2  Yeates,  369)                 -  .                     .  305 

Mcason,  Ex  parte,  (5  Binn.  157)             -  238 

Messenger  v.  Kintncr  (4  Binn.  97)                           -  -                 -  146 

Methodist  Episc.  Church  v.  Jaqucs  (3  Johns,  Cha.  Rep.  77)  -  227 

Metz's  Appeal  (11  Serg*.  &  Rawle,  205)  -                    .        .  245 

Metzer  and  Hench  (6  Serg.  &  Rawle,  272)           -  .                .  462 

Mickle,  matter  of,  (14  Johns.  Rep.  324)  -                     -         -     12 

Miles  v.  Wister  (5  Bimi.  477)             -                .-  -                 .  327 

Milledge  v.  Lamar  (4  Desaus.  Rep.  623)  -                                  1 

Miller  v.  Miller  (3  Serg.  &  Rawle,  267)             -  -                 -8 

v.  Umbehower  (10  Serg.  8c  Rawle,  31)  -                 .  435 

v.  Stout  (2  P.  A.  Browne's  Rep.  294)  -                -    #  -  145 

Minge  and  Dandridge  (4  Rand.  Rep.  397)  -                 -         .  284 

Minuse  v.  Cox  (5  Johns.  Cha.  Rep.  450)             -  .                -     22 

Mitchell  v.  Lunt  (4  Mass.  Rep.  659)               -  ..                     .40 

Mitchell  and  Windows  (1  Murphy's  Rep.  127)  '%  -                 -         -  233 

Moliere's  Lessee  v.  Noe  (4  Dall.  450)             -  -                    .  146 

Montague  v.  Smith  (13  Mass.  Rep.  396)                -  .             .       6 

Moon  and  Kerr  (9  Wheat.  Rep.  565)                 -  .  \qq 

Moore  v.  Kerr,  Ex.   (10  Serg.  8c  Rawle,  318)  -                 .         .  470 

Moritz  v.  Brough  (16  Serg.  8c  Rawle,  403)  -                 -             -     15 

Morrell  v.  Dickey  (1  Johns.  Cha.  Rep.  153)  -                 -            1.  108 

Morris's  Lessee  v.  Smith  (1  Yeates,  238)         -  -               .  145 

Mon-ison  and  Lawson  (2  Dall.  289)                 -  -               -         -     12 

Moses  v.  Murgatroyd  (1  Johns.  Cha.  Rep.  119)  -                 .  415 

Muloy  and  Hoare  (2  Yeates,  161)             -                 .  -                 -464 

Mumford  and  Nichol  (Kirby's  Rep.  374)  -                 .         .  108 

Murdock  and  M'Dowell  (1  Nott  8c  M'Cord's  Rep.  237)                          -  233 

Murgatroyd  and  Moses  (1  Johns.  Cha.  Rep.  119)  -                 -  415 

Murray  v.  Blatchford  (1  Wend.  Rep.  583)  .             '.        -359 


\lviii  TABLE  OF 

Page 
Musser  and  Good  (11  Serg\  &  Rawle,  247)  -  -  -  440 
Myers  v.  Myers  (2  M'Cord's  Hep.  255)  -  -  -  -  326 
and  Rothmaler's  Ex.   (4  Desaus.  Rep.  215)  ,                         -  346 

N. 

Nailer,  Ex.  v.   Stanley  (10  Serg.  &  Rawle,  450)  -                   -  146 

Napier  and  De  Besse  (1  M'Cord's  Rep.  107)  -             -     39 

Nass  v.  Yanswearinger  (7  Serg.  &  Rawle,  192)  -     40 

NeaPs  Ex.  and  Chandler's  Ex.   (2  Hen.  &.  Munf.  124)  -  287 

Neaves'  Case  (9  Serg.  &  Rawle,  186)                       -  -  -           -     89 

Nell'  and  Anderson  (11  Serg.  &  Rawle,  208)  -                      -  456 

Nelson  v.  (Harrington  (4  Munf.  Rep.  332)  -             -  362 

Newell's  Case  (2  M'Cord's  Rep.  453)                     -  -                     -     10 

Newkirk  and  Livingston  (3  Johns.  Cha.  Rep.  312)  -             -  238 

Newman  and  Bell  (5  Serg.  &  Rawle,  78)  -                         -  455 

Nichol  v.  Mumford  (Kirby's  Rep.  274)                    -  -    .          -  108 

Nichols  v.  Hodges  (1  Peters'  S.  C.  Rep.  562)  -                   -  456 

Nicholson  v.  Elton  (13  Serg.  &  Rawle,  416)  -                     -  460 

Nixon  and  M'Carty  (2  Dall.  Rep.  65,??.)  -                       -  162 

Nimmo's  Ex.  v.  The  Commonwealth  (4  Hen.  &.  Munf.  57)  -  139 

Noe  and  Moliere's  Lessee  (4  Dall.  450)                  -  -             -  146 

North  and  Stein  (3  Yeates,  324)                                -  1 

Nussear  v.  Arnold  (13  Serg.  &  Rawle,  323)  -                    -       8 

0. 

O'Daniel  and  Guier  (1  Binn.  349)                    -  -                   -386 

Orphan's  Court,  President  of,  and  Groflf  (14  S?rg.  &  Rawle,  181)            146 

Osgood,  v.    Breed  (12  Mass.  Rep.  53?)                  -  9 

Ostrander  and  Kain,  Ex.  (8  Johns.  Rep.  159)  -                     -  434 

Ousterhoudt  v.  Hardenburgh  (19  Johns.  Rep.  267)  -            -  463 

Overacker  and  Rattoon  (8  Johns.  Rep.  97)  -                     -  242 

Overhouldt  and  Bradley  (13  Johns.  Rep.  404)  -          -198 

Owens  and  Shields  (1  Rawle,  72)  463 

Owings  v.  Owings  (1  Harr.  &  Gill.  484)             -  -                     -  337 


Paine  v.   Ulmer  (7  Mass.  Rep.  317)                     -  -                -  434 

Parke  and  Pemberton  (5  Binn.  601)                         -  -             .  300 

Parker  and  Gardner  (3  Madd.  Rep.  184)                -  -                 -  234 

Parkin  v.  Bainbridge  (3  Phill.  Rep.  322)  '  -            -     15 

Partridge's  Adm.  v.  Partridge  (2  Harr.  &  Johns.  63)  -             -  336 

Patterson  v.  Hawthorn  (12  Serg.  &  Rawle,  112)  -               170.305 

Payne  and  Walden's  Ex.   (2  Wash.  Rep.  1)  ...  341 

Patton  v.  Ash  (7  Sorg.  &  Rawle,  116)                 -  -               -  456 

Pearson  v.  AVightman  (2  Rep.  Const.  Court,  343)  -      2 


AMERICAN    CASES.  xli\ 

Page 

Pearson  and  Evans,  Adm.  (1  Wend.  Rep.  30)                     -  -.463 

Peeble's  Appeal  (15  Serg.  &.  Rawle,  39)               -  77.  242 

Pelletreau  v.  Rathbone  (18  Johns.  Rep.  429)                      -  -  466 

Pemberton  v.  Parke  (5  Binn.  601)                   -  -  300 

Pendleton's  Ex.  and  Swearingen  (4  Serg.  &.  Rawle,  289)  -  468 

Penniman  and  Griswold  (2  Conn.  Rep.  564)                     -  -  220 
Pennsylvania  Agr.  Bank  v.  Stambaugh's  Adm.  (13  Serg.  &  Rawle,  303)  470 

Penrose  v.  Penrose,  Ex.  (2  Binn.  440)                     -                     -  466 

Perkins  v.   Williams  (2  Root's  Rep.  462)                 -                 -  -  108 

Perrie  and  Forbes  (1  Harr.  &  Johns.  109)                  -                 -  -  463 

Peters  v.  Davis  (7  Mass.  Rep.  257)                         -                 -  -  162 

Picket  and  Knorr  (4  Desaus.  Rep.  92)                     -                     -  -  357 

Picquet  v.  Swan  (3  Mason's  Rep.  469)          .       -                 -  -  108 

Plumstead's  Appeal  (4  Serg.  &  Rawle,  545)                       - .  2 

Pope  v.  Delavan  (1  Wend.  Rep.  68)  -  467 

Porter  and  Smith  (1  Binn.  209)                         -                     -  -  287 

Postell's  Ex.  and  Ingraham  (1  M'Cord's  Cha.  Rep.  94)             -  -  323 
Powell  v.  Biddle  (2  Dall.  70)                     ....  300 

Prevost  v.  Gratz  (3  Wash.  C.  C.  Rep.  434)               -                 -  -  456 

Price  and  Butts'  Adm.   (Cam.  &  Norw.  68)               -                 -  -108 

Pringle  v.  M'Pherson's  Ex.  (2  Desaus.  Rep.  524)              -  -     14 

v.  Black's  Ex.  (2  Dall.  97)  ...  477 

Purcell  a>ic?  Hartness  (1  Wend.  Rep.  303)                     -  -  466 

Furdew  v.  Jackson  (1  Russ.  Rep.  1)             '    -                     -  -  219 

Purvis  and  Dickinson  (8  Serg.  &  Rawle,  71)                        -  -  303 

Pusey  v.  Clemson  (9  Serg.  &  Rawle,  208)                  -                 -  -  347 

Q. 

Quince  and  M'Nicll  (2  Hayw.  Rop.  153)                .                 «-    ..  A  4^4, 

R. 

Rahm  and  The  Commonwealth  (2  Serg.  8c  Rawle,  375)          -  -  146 

Rambler  v.  Tryon  (7  Serg.  St  Rawle,  90)               -                 ,  .9 

Ramsay's  Ex.  and  Dixon's  Ex.  (3  C ranch,  319)  -  .  .  108 
Rathbone  and  Pelletreau  (18  Johns.  Rep.  429)             ....  455 

Rattoon  v.  Overacker  (8  Johns.  Rep.  97)                -                 -  .  242 

Read  and  Walmesley  (1  Yeates,  87)    „                            -  2 

Reed  et  ux.  v.  Borland  (14  Mass.  Rep.  208)        .     -                 .  -     16 

v.  Cist  (7  Serg.  &  Rawle,  183)                       .                .  .153 

Reichenback  and  Dornick  (10  Serg.  &  Rawle,  84)  9 

Remsen  and  Cooper  (3  Johns.  Cha.  Rep.  382)              -                .  314 

Reynolds  v.  Reynolds  (16  Serg.  &  Rawle,  82)               -             -  .0 

Rice  and  Benson  (2  Nott  &  M'Cord,  577)                     -                .  .  129 

Richards  and  Harvey  (1  Mason's  Rep.  581)  .  .  386 
Riley  v.  Riley  (3  Day's  Rep.  74)  -  ...  10s 
Rine  and  Wilson  (1  Harr.  &  Johns.  139)          -                 ...  306 

Robinson  v.  Martin  (2  Yeates,  525)         -               .                 .  .  303 

Rootes  and  Wilcox  (1  Wash.  Rep.  140)                  -                -  -     17 


1  TABLE  OF 

Page 

Rootes  v.  Webb  (4  Munf.  77)                        •  .                .            341 

Roosevelt  and  Dale  (8  Cow.  Rep.  3.33)                   -  .                 .  448 

v.  Mark  (&  Johns.  Cha.  Repi  266)  -                -      -  28? 

Rossiter  and  Simmons  (6  Serg.  &  Rawle,  452)  -                 .         -       2 

Rothmalcr's  Adm.  v.  Myers  (4  Desaus.  Rep.  215)  -                 .  346 

Rowan  and  Harrison  (3  Wash'  C.  C.  Rep.  580)  .       2 

Royal  v.  Eppes  (2  Munf.  479)                      -  -                 -           -  122 

Riidd  and  Long  (4  Johns.  Rep.  190)              -  -                 -            440 

Rutledge  v.  Rutledge's  Creditors  (1  M'Cord's  Cha,  Rep.  460)             -  412 

S. 

Sabin  v.  Gilraan  (Adams'  Rep.  198)                -  -                     -  108 

Savage  and  Kennedy  (2  P.  A.  Browne's  Rep.  178)  -             -         -152 

ScheifTelin  v.  Stewart  (1  Johns.  Ch.  Rep.  620)  -                     -  480 
Scott  v.  Burch  (6  Han-.  &  Johns.  67)                     ...  129 

Sears  and  Fenwick  (1  Cranch,  259)                      -  -                -  108 

v.  Dillingham  (12  Mass.  Rep.  358)  -                                  2~ 

Seaver  v.  Lewis  (14  Mass.  Rep.  83)              -  -                »         -  418 

Sedgwick  and  Lee  (1  Root's  Rep.  52)  '           -  -             -          -     89 

Semmes  v.  Semmes  (7  Harr.  and  Johns.  388)  -                -     12 

Sewell  and  Fishwick's  Adm.   (4  Harr.  &  Johns.  393)  -                -  432 

Sexman  and  Kerns  (16  Serg.  Sc  Rawle,  315)  -                 -       2 

Shauffler  v.  Stoever,  Adm.   (4*Serg.  &  Rawle,  202)  -                     -  121 

Sheblearce?  Cummin  (1  P.  A.  Browne's  Rep.  253)  -            -219 
Shelby  and  The  Commonwealth  of  Pennsylvania  (13  Serg.  &  Rawle, 

348)                    -                        -                        .  .  301 
Shelton  v.  Shelton  (1  Wash.  Rep.  53)                   ...  352 

Shields  v.  Irwin  (3  Yeates,  389)"                        -  -                                  1 

v.Owens  (1  Rawle,  72)        .     -                -  -                -463 

Shillaber  v.  Wyman  (15  Mass.  Rep.  322)                 -  -              -  242 

Shoolbred  and  Drayton  (2  Desaus.  Rep.  246)  -                -         -  362 

Shult  v.  Barker  (12  Serg.  &  Rawle,  272)              -  -                -  206 

Shutz's  Appeal  (11  Serg.  &  Rawle,  182)                -  -                  -  286 

Siglar  v.  Haywood  (8  Wheat.  675)                          -  -                 -  456 

Simmons  and  Lattimore  (13  Serg.  &  Rawle,  185)  -                 -         -  462 

and  Rossiter  (6  Serg.  &  Rawle,  452)  -         -                 -       2 

Simon,  Adm.  v.  Albright  (12  Serg.  and  Rawle,  429)  -         -  444 

Simonton  and  Armstrong  (2  Tayl.  Rep.  266)  -                 -         -  219 

Simpson  and  Drum's  Lessee  (6  Binn.  478)            -  -                 -       2 

Somerset  Baaik  and  Curtis  (7  Harr.  &  Johns.  25)  -                 -         -  463 

Small  v.  Small  (4  Grcenl.  Rep.  220)              -  '  -                          .       8 

Smart  an d  Stephens  (1  Car.  Law  Rep.  471)          -  -                -  108 

and  Williamson  (Tayl.  R^p.  219)                -  -                -  386 

Smith  v.  Porter  (1  Binn.  209)                 -                 -  -         -  287 

and  Montague  (13  Mass.  Rep.  396)              -  -                 -       6 

and  Howell's  Adm.  (2  M'Cord's  Rep.  516)  -                 -     37 

and  Geyer  (1  Dall.  347,  n.)                 ■  -                -        -  463 

and  Graft'  (1  Dall.  141)                  -                 -  -                 -145 

— und  Morris's  Lessee  (1  Yeates,  238)  -  145 


AMERICAN  CASES.  H 

Page 

Smith  and  Zebach's  Lessee  (3  Binn.  69)               -  -                -  362 

Smith's  Aclm.  and  Tazewell  (1  Rand.  Rep.  313)  -                    -  173 

Smith's  Case  (2  Desaus.  Rep.  123,  n.)                            -  -        -  300 

Smithson  and  Dorse)'  (6  Harr.  andJohns.  61)  -                -    39 

Snelgrove  v.  Snelgrove  (4  Desaus.  274)                         -  -.     2 

Snyder  and  Dougherty  (15  Serg.  8c  Rawle,  84)              -  -227 

Snyder's  Lessee  v.  Snyder  (6  Binn.  483)                         -  -         -146 

Southwick  v.  Jordan  (15  Mass. Rep.  113)                        -  -         -     22 

•Stambaugh  and  Penn.  Ag.  Bank  (13  Serg.  8c  Rawle,  303)  -  468 

Stammers  and  Weston  (IDall.  2)                  -                -  -        -      2 

Stanet  v.  Douglass  (2  Yeates,  48)                  -                 -  -         -•      y 

Stanley  and  Nailer's  Ex.   (10  Serg.  8c  Rawle,  450)  -  146 

Stark  ana?  Sheppard's  Ex.   (3  Munf.  Rep.  29)  -                 -341 

Starr  cue?  Durant  (11  Mass.  Rep.  527)                      -  -                        2 

State  (of  Maryland)  v.  Cradock,   (7  Harr.  8c  Johns.  40)  -         -  405 

and  Dukehart's  Ex.  (4  Harr.  8c  Johns.  506)  140 

i v.  Krebs  (6  Harr.  8c  Johns.  31)  -                -  219 

Stein  v.  North  (3  Yeates,  324)                    -                    -  -         -       1 

Stephen  v.  Smart  (1  Carol.  Law  Rep.  471)          '  -  -                -  108 

Stephens  v.  Gaylord  (11  Mass.  Rep.  369)                        -  108.  317 

Steuart  and  Tilghman  (4  Harr.  8c  Johns.  156)               -  3 

Stevens  and  Thomas  (4  Johns.  Cha.  Rep.  607)  -                 -  300 

Stewart  and  Byrne's  Adm.  (3  Desaus.  Rep.  135)  -                 -  219 

and  Scheiffelin  (1  Johns.  Cha.  Rep.  620)  -  480 

v.  Carson's  Ex.   (1  Desaus.  Rep.  501)               -  -         -  301 

v.  Stewart  (7  Johns.  Cha.  Rep.  244)         -  -                 -     84 

Stewart's  Will,  case  of,  (stated  4  Harr.  8c  Johns.  162)  -             -         3 

Stoever,  Adm.  and  Shauffler  (4  Serg.  8c  Rawle,  202)  -  121 

v.  Ludwig  (4  Serg.  8c  Rawle,  20l)             -  -               -     90 

Stone  and  Greave  (1  Harr.  8c  Johns.  405)              -  -                 -  464 

v.  Damon  (12  Mass.  Rep.  488)                  •     -  -                        9 

v.  Massey  (2  Yeates,  369)                     -                -  -         -  305 

Storrs  and  Williams  (6  Johns.  Cha.  Rep.  353)  -                 -  108 

Stout  v.  Hart  (2  Halst.  Rep.  414)                   -                 -  -            303 

and  Miller  (2  P.  A.  Browne's  Rep.  294)              -  -         -  145 

StovalFs  Ex.  v.  Woodson  (2  Munf.  303)                      -  -                     -  341 

Strong  v.  Williams  (12  Mass.  Rep.  391)  -         -  337 

Sullivan  and  Campbell's  Ex.  (Hard.  Rep.  17)  -  287 

Swan  and  Dawes  (4  Mass.  Rep.  215)                       -  -                 -  324 

and  Picquet  (3  Mason's  Rep.  469)                        -  -         -108 

S wann  and  Guage  (1  Hayw.  3)                       -                 -  -            223 

Swearingen  v.  Pendleton's  Ex.   (4  Serg.  &.  Rawle,  389)  -         -  469 

Swicard  and  Wilson  (2  Rep.  Const.  Ct.  So.  Carolina,  208)  -         -  464 

Swift  v.  Duffield  (5  Serg.  &  Rawle,  40)  -                 -     3D 

Sword's  Lessee  v.  Adams  (3  Yeates,  34)                -  -                 -  303 

• 

T. 

Taggart  and  Toner  (5  Binn.  491)                    -  -                    -       1 
Tallman  and  Woodward's  E\.  and  Wood  (Coxe's  N.  J.  Rep.  153)       -  348 


TABLE  OF 


U. 


Page 

-  108 

-  314 


-  173 

-  9 
-300 


Tallmftdge  v.  Chapel  (16  Mass.  Rep.  71) 

and  Genet  (1  Johns.  Cha.  Rep.  3)         - 

Tatem  and  Evans  (9  Serg.  &  Rawle,  252)  -     -  1°8 

Taylor  and  Bevan  (7  Serg.  and>Rawle,  397)  -  3.82 

and  Lloyd's  Lessee  (2  Dall.  223) 

v.  Taylor  (2  Nott  &  M'Cord,  485) 

Tazewell  v.   Smith's  Adm.  (1  Rand.  Rep.  313) 
Temple  v.  Temple  (1  Hen.  &  Munf.  476) 
Thomas  and  Stevens  (4  Johns.  Cha.  Rep.  607) 

V.Thompson  (2  Johns.  Rep.  471) 

Thompson  and  Thomas  (2  Johns.  Rep.  471) 

Thompson's  Adm.  v.  Thompson's  Ex.   (6  Munf.  514) 

Tilden  and  Brown's  Ex.  (5'Harr.  &  Johns  371) 

Tilghman  v.  Stewart  (4  Harr.  and  Johns.  156)  -  -  -       3 

Tilley  and  Champl'm  (3  Day's  Rep.  303) 

Todd  v.  Todd's  Ex.    (1  Serg.  &  Rawle,  453) 

Toner  v.   taggart  (5  Binn.  490) 

Torbert  v.  Twining  (1  Yeates,  432)  -  -      „ 

Towle  v.  Lovctt  (6  Mass.  Rep.  294)  -  -  *32 

Trecothick  v.   Austen  (4  Mason's  Rep.  16) 

Tremper  and  Holmes  (2  Johns.  Rep.  29)  -  19S 

Tryon  and  Rambler  (7  Serg.  and  Rawle,  90)  7        -       9 

Tucker  and  Wells  (3  Binn.  370)  .    -  "  233 

Tunis  and  Frazier  (1  Binn.  254) 

Turnbull  and  Gillon  (1  M'Cord's  Cha.  Rep.  148)  -  -323 

Tumipseed  v.   Hawkins  (1  M'Cord's  Rep.  272) 

Twining  and  Torbert  (1  Yeates,  432)  -  -  -  225 


19 


Udall  v.  Kenney  (5  Cow.  Rep.  590) 

Clmer  and  Paine  (7  Mass.  Rep.  317)  -  -  -  *34 

Umbehower  and  Miller  (10  Serg.  &  Rawle,  51)  -  43 j 

Union  Bank  v.  Emerson  (15  Mass.  Rep.  159)        .      - 

Urie  cmtZLandis  (10  Serg.  &.  Rawle,  316)  -  -  -464 


Vanderost's  Ex.  v.  Whitner  (2  Bay,  399)  -  440 

Yan  Alst  v.  Hunter  (5  Johns.  Cha.  Rep.  158)  -       9 

Van  Bramer  v.  Hoffman's  Ex.  (2  Johns.  Ca.  200) 

Yan  Home  v.  Fonda  (5  Johns.  Cha.  Rep.  38S)  -  -     42 

Van  Swear'mgen  and  Nass  (7  Serg.  &.  Rawle,  192) 


•i  ) 


Vaughan  v.   Wilson   (4  Hen.  and  Munf.  152) 

Vernoy  and  Hcrnaance  (6  Johns.  Rep.  5)  -  198 

w. 

Wachsmuth  and  Kennedy  (12  Serg.  and  Pawle,  171)  -  146 

AYagner  v.  M'Donald  (2  Harr.  and  Johns.  J  U>)  -  -     58 


AMERICAN    CASES.  liii 

Page 

Walden's  Ex.  v.  Payne  (2  Wash.  Rep.  1)  341 

Wales  v.  Willard  (2  Mass.  Hep.  121)                       -  -                -  120 

Walker  and  Duncan  (2  Dall.  20*5  -          -386 

"Walker's  Adm.   v.    Smith   (3  Yeates,  480)               -  -  382 

Walker's  Estate  (9  Serg\  &  Ravvle,  223)                 -  -                456 

Wallace  v.  Pitzsimons  (1  Dall.  248)                      -  -                      -  162 

Walmesleyv.  Read  (1  Yeates,  87)                        -  -                 -       2 

Walton  v.  Walton  (7  Johns.  Cha.  Rep.  264)  -                  22.  301 

Ward  and  Gale  (14  Mass.  Rep.  352)                   -  -                        -  ll->8 

and  Woodrop  (■>  Desaus  Rep.  203)               -  -                 •  455 

Ware's  Lessee  v.  Fisher  (2  Yeates,  578)               -  -             -  386 

Warren  v.  Wig-fall  (3  Desaus  Rep.  47)                   -  -                  -  300 

Watson,  Adm.  v.  Plane  (12  Serg\  and  Rawle,  131)  -          158.  432 

and  Wilson  (1  Peters'  C.  C.  Rep.  269)  -                  -  145 

Webb  and  Rootes  (4  Munf.  77)                        -  341 

Weeden  v.  Bartlett  (6  Munf.  123)                         -  .                 .       4 

Weishaup  v.   Brehman  (5  Binn.  118.)                     -  -               -  303 

Wellborn  v.  Gordon  (1  Murph.  103)                 -  -                     -  467 

Wells  v.  Tucker  (3  Binn.  370)                              -  -                     -  233 

West's  Case  (cited  1  Dall.  Rep.  281)                  .-  -                     -       2 

West  v.  West  (10  Serg\  and  Rawle,  446)                -  -                         8 

Weston  v.  Stammers  (1  Dall.  Rep.  2)                      #-  -                 -       2 

Whitaker  v.  Whitaker  (6  Johns.  Rep.  117)                 -  81.  219.  463 

White  v.  Helmes  (1  M*  Cord's  Rep.  430)         -  -                 -       2 

Whitncr  and  Vanderost's  Ex.   (2  Bay,  399)  -                       -  440 

Wieser  and  Collins  (12  Serg.  &  Rawle,  97)                 -  -             -463 

AVigfall  and  Warren  (3  Desaus.  Rep.  47)             -  -               300,  301 

Wightman  and  Pearson  (2  Rep.  Const.  Court,  343)  -                     -       2 

Wilcox  v.  Rootes  (1  Wasli.  Rep.  140)              -  -                     -     17 

Wilkins  and  Riddle  (1  Peters'  Sup.  C.  Rep.  686)  -                 -  437 

and  Brush  (4  Johns.  Cha.  Rep.  506)  -     17 

Wilkinson  and  Cutchin  (1  Call's  Rep.  2)  -                         -     85 

Willard  and  Wales  (2  Mass.  Rep.  121)             -  -                     -  120 

Williams  and  Perkins  (2  Root's  Rep.  462)             -  -  108 

and  Strong  (12  Mass.  391)                   -  .      -                     -337 

v.  Crary  (8  Cow.  Rep.  246)                  -  -                     -  336 

v.  Storrs  (6  Johns.  Cha. -Rep.  353)  -                     -  108 

Williamson  v.  Smart  (Tayl.  Rep.  219)                     -  -            -  386 

Wilson  and  Hight  (1  Dall.  Rep.  94)  2.  9 

v.  Hurst's  Ex.  (1  Peters'  C.  C.  Rep.  441)  -  468 

v.  Long  (12  Serg.  &  Rawle,  58)  ...  462 

v.  Rine  (1  Harr.  &  Johns.  139)  -                 -             306 

and  Swicard  (2  Rep.  Const.  Ct.  So.  Carolina,  208)  -  464 

and  Vaughan  (2  Hen.  and  Munf.  452)  -             -             -  222 

v.  Watson  (1  Peters'  C.  C.  Rep.  269)         -  -  145 

v.  Wilson  (3  Binn.  562.  9  Serg.  &  Rawle,  428)  -  355 

Wilson's  Ex.  and  Allison  (13  Serg.  and  Rawle,  330)  -             -  412 
Windows  v.  Mitchell  (1  Murphy's  Rep.  127)' 
Winds  and  Geer  (4  Desaus.  Rep.  85) 


00 


llV  TABLE  OF  AMERICAN  CASES. 

Page 

Winship  v.  Bass  (12  Mass.  Bep.  199.)                    .                   .  .  350 

Wister  and  Miles  (5  Binn.  477)                      -                     .    .  -  327 
Withcrspoon's  Heirs  v.  Withcrspoon's  Ex.  (2  M 'Cord's  Bep.  520)      -       3 

Woiklrop  v.  Ward  (3  Desaus.  Bep.  203)                -                 -  -  455 

Wood  v.  Tallman  and  Woodward's  Ex.  (Coxe's  N.  J.  Bep.  153)  3 13 

Woodberry  v.  Collins'  Ex.   (1  Desaus.  Bep.  425)               - '  .  299 

Woodhouse's  Adm.  and  Dykes  (3  Band.  Bep.  288)              -  -  352 

Woodson  and  Stovall's  Ex.  (2  Munf.  303)           •   -                 -  -  341 
Wright  and  Lee  (1  Bawle's  Bep.  151)                 -                 -               242.  364 

v.  Wright  (1  Cow.  Bep.  598)                 -                  -  -  234 

v.  Wright's  Ex.  (2  Desaus.  Bep.  244)                    -      •  -     10 

Wyman  and  Shillaber  (15  Mass.  Bep.  322)              -                -  -  242 

Y. 

Yates 'and  Dewitt  (10  Johns.  Bep.  156.)                          -  .  334 

Yerby  v.  Yerby  (3  Call's  Bep.  334)                 •     -                     -  -     13 

Young  and  Eyster  (3  Yeatcs,  511)                  -                    -  -2 

and  Bickle,  Adm.  (3  Serg.  and  Bawle,  235)                 -  -  146 

and  M'Culiough  (IB-inn. 63)                -                 -  -  108 

z. 

Zebach's  Lessee  v.   Smith  (3  Binn.  69)                -     '  -  362 


ERRATA. 

Page  4,  note  (3),  after  White  v.  Ilelmcs,  add  "and  in  Maryland.  Rush  v. 
Soweywine,  3  Harr.  &  Johns.  97." 

Page  14,  note  (5),  after  2  Yeates,  171,  add  "  Wilmofs  Lessee  v.  Talbot,  3 
Harr.  &   M'Hen.  2." 

Page  90,  for  the  paragraph  in  the  text,  "  but  from  among  persons  in  equal 
degree,  in  case  they  apply,  the  ordinary  has  the  power  of  making  his  elec- 
tion"— refer  to  Taylor  v.  Dclaney,  2  Cainc's  Cases  in  Error,  143. 

Page  146,  10th  line  from  the  bottom,  instead  of  Girard  v.  M'Dermatt, 
6  Serg.  &  Kawle,  128,  read  5  Serg.  Sc  Rawle,  128. 

Page  444,  to  end  of  note  (2)  add  "  Reno,  Ex.  v.  Davis,  4  Hen.  &.  Mtinf. 


THE 

LAW  OF  EXECUTORS 

AND 

ADMINISTRATORS. 


BOOK  I. 

OF  THE  APPOINTMENT  OF  EXECUTORS 
AND  ADMINISTRATORS. 


CHAP.    I. 


OF    WILLS    AND    CODICILS WHO    MAY    MAKE    THEM WHO    NOT— - 

HOW  THEY  ARE  ANNULLED  OR  REVOKED — HOW  REPUBLISHED. 

Before  I  enter  on  the  subject  of  this  treatise,  I  shall  state  some 
general  propositions  in  regard  to  wills. 

A  will,  or  testament,  is  defined  to  be  the  legal  declaration  of  a 
party's  intentions,  which  he  directs  to  be  performed  after  his 
death  (a).  (1) 

A  will  may  relate  either  to  real,  or  to  personal  property.  In 
the  former  case,  it  is  denominated  a  devise,  which  is  an  appoint- 
ment of  a  person  to  take  in  the  nature  of  a  convey  [2]ance,  although 
fluctuating  till  the  testator's  death,  and  will  pass  only  such  estate 
as  he  was  seised  of  at  the  time  of  making  it(5);  the  right  to  devise 

(a)  2  Bl.  Com.  499,  500.  Swift  v.  Roberts,  Amb.  619.     Oke  v. 

(b)  4  Bac.  Abr.  242.  2  Bl.  Com.  378.  Heath,  1  Ves.  141.  Brydges  v.  Duch.  of 
501.     Wind  v.  Jekyl,  1  P.  Wms,  575.     Chandos,  2  Ves.  Jun.  427. 


(1)  Per  Joknso?i  J.  1  M'Cord's  Rep.  522.  2  M'Cord's  Rep.  522.  Per  Duncan 
J.  4  Serg.  &.  Rawle,  546.  And  it  is  not  indispensable  that  the  testator  should 
originally  have  executed  a  paper  as  and  for  a  will,  provided  he  afterwards  adopts 
it  as  such  ;  therefore  if  it  be  executed  as,  or  called  a  deed  in  the  body  of  it,  yet  if 
made  with  a  view  to  the  disposition  of  a  man's  estate  upon  his  death,  it  will  enure 
as  a  will.  Lyles  v.  Lyles,  2  Nott  &  M'Cord,  531.  Henry  v.  Ballard,  2  Car.  Law 
Rep.  595.  See  Mi  Hedge  x.  Lamar,  4  Desaus.  Rep.  623.  When  a  testamentary 
disposition  of  the  writer's  estate  is  intended  to  be  made  by  it,  a  letter  (Morrell  v. 
Dickey,  1  Johns.  Cha.  Rep.  153)  or  memorandum  may  be  a  will  ;  but  there  must 
be  an  advised  purpose  shown  by  the  paper  to  make  a  present  testamentary  dispo- 
sition, and  not  the  intention  to  do  some  future  act.  Stein  v.  North,  o  Yeates,  324. 
M'Gee  v.  M'Cants,  1  M'Cord,  517.  Plumstead's  Appeal,  4  Serg.  &  Rawle,  545. 
Shields  v.  Trtvin  cf  at.  3  Yeates,  3S9.     Toner  v.  Taggart,  5  Binn.  490. 

1 


2  OF    WILLS    AND    CODICILS,  (_BOOK  I. 

arising  from  the  stat.  32  Hen.  8.  c.  1.  which  enacts,  that  persons 
/taring  lands  may  devise  the  same.  By  the  statute  of  frauds  and 
perjuries,  29  Car.  2.  c.  3,  (1)  it  shall  not  only  be  in  writing,(2)  but 


(1)  Passed  in  1676,  to  take  effect  from  and  after  June  24th,  1677. 

(2)  In  Pennsylvania,  by  the  Act  of  Assembly  of  1705,  (Purd.  Dig.  800.,  1 
Dall.  Laws,  53.,  1  Sm.  Laws,  33.)  sect,  1.  it  is  provided,  "that  all  wills  in  writing 
wherein  or  whereby  any  lands,  tenements,  or  hereditaments,  within  tliis  province, 
have  been,  are,  or  shall  be  devised,  being  proved  by  two  or  more  credible  wit- 
nesses, upon  their  solemn  affirmation,  or  by  other  legal  proof  in  this  province,  or 
being  proved  in  the  Chancery  in  England,  and  the  bill,  answer,  and  depositions 
transmitted  luther,  under  the  seal  of  that  Court,  or  being  proved  in  the  hustings, 
or  Mayor's  Court  in  London,  or  in  some  manor  Court,  or  before  such  as  shall  have 
power  in  England,  or  elsewhere,  to  take  probates  of  wills,  and  grant  letters  of  ad- 
ministration, and  a  copy  of  such  will  with  the  probate  thereof  annexed  or  indorsed, 
being  transmitted  hither,  under  the  public  or  common  seal  of  the  Courts  or  of 
fices  where  the  same  have  been  or  shall  be  taken  or  granted,  and  recorded  or  en- 
tered in  the  Register  general's  office  in  this  province,  shall  be  good  and  available 
in  law,  for  the  granting,  conveying  and  assuring  of  the  lands  or  hereditaments 
thereby  given  or  devised,  as  well  as  of  the  goods  and  chattels  thereby  bequeathed; 
and  the  copies  of  all  wills,  and  probates,  under  the  public  seals  of  the  Courts  or 
offices  where  the  same  have  been  or  shall  be  taken  or  granted  respectively,  other 
than  copies  or  probates  of  such  wills  as  shall  appear  to  be  annulled,  disproved,  or 
revoked,  shall  be  judged  and  deemed,  and  are  hereby  enacted  to  be  matter  of 
record,  and  shall  be  good  evidence  to  prove  the  gift  or  devise  thereby  made;  and 
all  such  probates,  as  well  as  all  letters  of  administration  granted  out  of  this  pro- 
vince, being  produced  here,  under  the  seals  of  the  Courts  or  offices  granting  the 
same,  shall  be  as  sufficient  to  enable  the  executors  or  administrators,  hy  themselves 
or  attorneys,  to  bring  their  actions  in  any  court  within  this  province,  as  if  the 
same  probates  or  letters  testamentary  or  administrations  were  granted  here,  and 
produced  under  the  seal  of  the  Register  general's  office  of  this  province." 

Previous  to  the  passage  of  the  act  of  1705,  it  was  enacted  by  the  first  Assembly, 
held  at  Chester,  in  December  1682,  in  pursuance  of  the  laws  agreed  upon  in  Eng 
land  in  March  of  the  same  year,  "that  all  wills  in  writing,  attested  by  two  suffi- 
cient witnesses,  shall  be  of  the  same  force  to  lands  as  to  other  conveyances,  being 
legally  proved  within  forty  days,  cither  within  or  without  the  province."  (Prov. 
Laws,  App.  7.)  The  earliest  will  upon  record  in  the  office  of  the  Register  of 
Wills  at  Philadelphia,  is  that  of  William  Clar/ce,  dated  12th  of  May,  1681,  in 
Book  A.  page  5,  which  is  executed  in  the  presence  of  two  witnesses  ;  but  the 
wills  on  record  in  the  same  book,  bearing  date  in  1682,  1683,  are  generally  exe 
cuted  in  the  presence  of  three  or  four  witnesses. 

It  has  been  decided  that  since  the  passage  of  the  act  of  1705,  it  is  not  necessary 
to  constitute  a  will,  even  of  lands,  that  it  should  be  sealed,  or  subscribed  by  wit- 
nesses, nor  that  the  proof  of  the  will  should  be  made  by  those  who  subscribed  as 
witnesses,  nor  that  all  the  subscribing  witnesses  should  prove  the  will.  Hight  \. 
Wilson,  1  Dall.  Rep.  94.  JLrdnt  v.  'jlrdnt,  1  Serg.  &  Rawle,  256.  It  is  only  ne- 
cessary that  it  should  be  reduced  to  writing,  in  pursuance  of  his  direction  or  in- 
structions, during  the  testator's  lifetime,  and  these  facts  proved  by  two  witnesses; 
signing  by  the  testator,  formal  publication,  and  attestation  by  subscribing-  wit- 
nesses, being  unnecessary.  16  Serg.  &  Rawle,  316.  Rossiter  v.  Simmons,  6  Serg. 
&.  Rawle,  452.  Walmcsley  v.  Read,  1  Yeates,  87.  But  it  is  not  necessary  that 
the  will  should  be  read  to  the  testator,  {Rossiter  v.  Simmons.  Lewis  v.  Lewis, 
6  Serg.  &  Rawle,  489,)  unless  some  reasonable  ground  be  laid  for  considering 
the  circumstance,  that  it  was  not  read,  as  a  badge  of  fraud.  Harrison  v.  Rowan, 
3  Wash.  C.C.  Rep.  580.  This. last  mentioned  decision,  it  is  to  be  observed, 
however,  was  not  made  with  reference  to  the  act  of  Assembly,  but  upon  a  will 
of  lands  in  New  Jersey,  where  the  decision  took  place.  Of  the  two  witnesses  to  a 
will,  each  must  depose  separately  to  all  facts  necessary  to  complete  the  chain  of 


CHAP.   I.]  OF    WILLS    AND    CODICILS.  2 

signed  by  the  testator,  or  some  other  person  in  his  presence,  anil  by 


evidence,  so  that  no  link  of  it  may  depend  upon  the  credibility  of  hut  one,  and 
if  the  act  of  Assembly  were  out  of  the  question,  the  case  would  be  well  made  out 
by  the  evidence  of  cither  ;  and  circumstantial  proof  cannot,  therefore,  be  made 
by  two  or  more  witnesses  alternating  with  each  other,  as  to  the  different  parts  of 
the  aggregate  of  circumstances  which  are  necessary  to  make  up  the  necessary  sum 
of  proof,  the  evidence  of  each  not  going  to  the  whole.  Hock  v.  Hock,  6  Serg.  & 
Kawle,  47.  Reynolds  v.  Reynolds,  16  Serg.  &  Rawle,  82.  Lewis  v.  Marls,  1  Dall. 
Rep.  278.  But  where  verbal  instructions  were  given  by  A  to  B  to  draw  his  will, 
and  B  procured  a  will  to  be  drawn  by  C  exactly  conformable  to  the  instructions, 
which  will  B  brought  to  the  testator,  who  was  too  unwell  to  sign  it,  and  died 
about  two  hours  afterwards  without  executing  it,  and  without  having  it  read  to 
him,  and  the  testator  complained  to  a  witness  on  the  day  he  died,  (but  whether 
before  or  after  the  will  was  brought  to  him  does  not  appear  by  the  report,  though 
it  would  seem  from  what  he  said  that  it  was  before,)  that  he  was  uneasy  that  his 
will  was  not  perfected,  mentioned  his  earnest  desire  that  B  should  draw  his  will, 
and  that  he  had  given  him  special  instructions  for  that  purpose,  which  he  repeated 
to  him,  which  express  instructions  given  to  B  by  the  deceased,  as  related  by  him 
on  the  day  he  died,  at  different  times  of  the  day,  were  proved  by  two  witnesses, 
and  the  testator's  recognition  on  the  day  of  his  death,  that  he  had  given  B  direc- 
tions to  draw  his  will,  was  proved  by  three  witnesses,  it  was  held,  in  a  Nisi  I'riics 
case,  that  the  will  drawn  by  C  being  conformable  to  tbe  testator's  verbal  instruc- 
tions, was  a  good  will  in  writing  under  the  act  of  Assembly  of  1705.  Wulmcslcy 
v.  Read,  1  Yeates,  87.  One  witness,  therefore,  according  to  this  last  mentioned 
case,  if  it  be  law,  may  prove,  that  the  testator's  will  was  reduced  to  writing  by 
the  witness's  procurement,  and  its  conformity  with  the  instructions  of  the  testa- 
tor; and  other  witnesses  may  prove  the  testator's  instructions  as  derived  from  him- 
self, and  their  identity  and  conformity  with  the  contents  of  the  written  will  proved 
by  the'first  witness,  though  the  declarations  of  the  testator,  as  to  what  the  in- 
structions for  his  will  were,  do  not  refer  to,  or  recognise  the  fact,  that  to  his 
knowledge  a  will  had  been  reduced  to  writing  in  conformity  with  his  instructions, 
but  merely  shew  what  his  will  is.  Two  recent  decisions  of  the  Supreme  Com-t, 
however,  have  settled  the  law  to  be,  that  where  one  witness  swears  to  the  pre- 
paration or  publication  of  a  paper  as  a  last  will,  proof  by  other  witnesses  of  decla- 
rations by  the  testator,  that  he  had  made  a  will,  must,  in  order  to  establish  the 
will,  be  of  declarations  made  in  reference  to  that  particular  paper.  Hockv.  Hock, 
6  Serg.  St  Rawle,  47.  Reynolds  v.  Reynolds,  16  Serg.  8c  Rawle,  82.  It  is  said  in 
the  marginal  note  of  Eyster  v.  Young,  3  Yeates,  511,  that  "  though  a  will  of  lands 
must  be  proved  regularly  by  two  witnesses,  yet  circumstances  may  supply  the 
want  of  one  witness,  where  they  go  directly  to  the  immediate  act  of  disposition." 
This,  however,  is  taken  from  a  dictum  of  the  Court  in  charging  the  jury,  and 
there  was  no  necessity  in  that  case  for  having  recourse  to  such  doctrine,  which 
is  not  very  intelligible,  for  the  instructions  of  the  testator  were  reduced  to 
writing,  afterwards  read  to  him  in  the  presence  of  two  witnesses,  and  were 
I'stablfshed  as  his  will  in  preference  to  a  more  formal  will  prepared  from  them 
by  flic  witness  who  had  written  down  the  testator's  instructions,  but  which  dif- 
fered from  them  in  some  particulars,  the  witness  who  took  the  instructions  hav 
iag  trusted  for  some  things  to  his  memory.  The  same  doctrine  is  stated  also  in 
the  marginal  note  of  another  Nisi  Prius  case,  Boudinot  v.  Bradford,  2  Yeates,  170. 
2  Dall.  Rep.  266.  The  real  question  however  involved  in  this  case,  the  reports 
of  which  are  very  unsatisfactory,  was  the  sanity  of  the  testator,  and  his  intention 
in  destroying  a  will;  which  one  witness,  his  nephew,  who  was  a  lawyer,  and  had 
nad  it  to  the  testator  a  few  days  before  his  death  with  the  view  to  take  his  in- 
structions for  preparing  another  will,  swore  was  in  the  testator's  handwriting,  and 

which  another  witness,  the  testator's  sister,  swore  was  signed  by  him,  though  she 

thought  the  body  of  it  was  not  in  his  handwriting.     This  will  the  last  mentioned 

witness  burned,  by  the  testator's  directions,  after  he  had  torn  it  in  pieces,  and  he 

I  to  his  physician  that  he  had  destroyed  it,  and  made  use  of  expressions,  and 

lid  certain    icts  eVinchjg  his  determination  to  die  intestate.     In  addition  to  the 


2  OF    WILLS    AND    CODICILS.  [BOOK    I. 

his  express  directions;  and  be  subscribed  in  his  presence  by  threu 
or  four  credible  witnesses  («).(1) 

But  the  actual  signature  of  the  testator  in  the  presence  of  the 
three  subscribing  witnesses,  is  not  required,  if  he  recognise  it  to  be 
his  signature  before  them.  (2)  Nor  is  it  necessary  that  the  three 
subscribing  witnesses  should  be  together  present,  at  the  time  of  the 
execution.  And  the  attestation  of  each  witness  separately  is  suffi- 
cient^).^) 

"I  A.  B.  do  make  this  my  will,"  is  equivalent  to  signature,  and 
if  acknowledged  before  three  witnesses,  is  a  good  execution  within 
the  statute  (c).(4) 

If  the  witnesses  to  a  will  attest  the  execution  of  it  by  the  testa- 
tor in  an  adjoining  room,  and  the  testator,  from  his  situation,  can 

(«)  Vide  Ellis  v.  Smith,  1  Ves.  Jim.  (ft)  Westbeech  v.  Kennedy,  1  Ves. 

1 1.  Broderick  v.  Broderick,  1  P.  Wms.  &.  Bea.  362. 

239.  and  Stonehouse  v.  Evelyn,  3  P.  (c)  Morrison  v.  Tumour,  18  Ves.  183. 
Wms.  254. 


proof  by  the  nephew  and  sister  of  the  testator,  the  report  of  Judge  Ycates  states 
the  determination  of  the  testator  to  republish  this  will,  and  make  an  alteration  in 
one  of  the  devises,  by  a  codicil  annexed  thereto,  which  codicil  he  subscribed,  and 
published  in  the  presence  of  four  witnesses,  but  which  he  destroyed  with  the  will 
to  which  it  Was  annexed.  The  will  was  therefore  in  point  of  fact  proved  by  two 
witnesses,  and  its  destruction  being1  proved  by  one  witness  who  saw  the  fact,  and 
another  to  whom  the  testator  stated  the  fact,  and  made  certain  declarations  eviri 
cing  his  intention  in  so  doing,  all  these  circumstances  were  left  to  the  jury,  who 
found  that  the  destruction  of  the  will,  with  the  view  to  die  intestate,  did  not  set 
up  a  former  will,  as  to  the  execution  of  which  there  was  no  doubt.  See  also 
Reynolds  v.  Reynolds,  16  Serg.  &  Rawle,  82.  The  words,  "or  by  other  legal 
proof  in  this  province,"  do  not  mean  less  proof  than  by  two  witnesses,  but  is  put 
in  opposition  to  solemn  affirmation,  in  order  to  admit  the  attestation  of  an  oath. 
West's  Case,  before  the  Register  General  (Mr.  Chew,  afterwards  Ch.  Justice)  in 
1773,  cited  1  Dall.  Rep.  281.  Lewis  v.  Maris,  1  Dall.  Rep.  278.  And  notwith- 
standing it  is  stated  in  Westons  v.  Stammers,  1  Dall.  ltep.2,  that  "an  exemplifi- 
cation of  a  will,  made  in  England,  and  certified  generally  to  have  been  proved  in 
the  Prerogative  Court  of  Canterbury,  under  the  seal  of  that  Court,  was  allowed 
to  be  read  in  evidence,"  the  constant  understanding  and  practice  of  this  state  has 
been,  that  no  matter  where  a  will  is  made  and  proved,  if  it  concern  lands  in  Penn 
sylvania,  it  must  be  proved  by  two  witnesses;  and  therefore  the  copy  of  a  will  of 
land  lying  in  Pennsylvania,  made  in  New  York,  proved  before  the  surrogate  of 
New  York,  by  one  of  the  subscribing  witnesses,  who  also  proved,  that  tin?  otlui 
two  witnesses  attested  the  same  in  the  presence  of  the  testator,  the  copy  b*ing 
authenticated  under  the  seal  of  the  surrogate's  oflicc,  and  entered  in  the  Register 
General's  office  in  Pennsylvania,  is  not  admissible  in  evidence  in  the  Courts  ol 
Pennsylvania,     //////on  v.  Brown,  1  Wash.  C.  C.  Rep.  299. 

(1)  Case  of  Cochran's  Witt,  3  Bibb's  liep.  491.     Burwcll  v.  Corbin,  1  Rand 
Rep.  131. 

(2)  Lewis  v.  Lewis,  6  Serg;  &  Rawle,  496.     Case  of  Cochran's   Witt.     EibecA 
-».  Granberry,  2  Hayw.  liep.  252. 

(3)  .///•<■.  (in  Pennsylvania)  Reynoldsw.  Reynolds,  16  Serg.  &  Rawle,  85.'  l/i 
ter  in  So.  Carelina,  Snelgrove  v.  Snelgrove,  Dunlap  v.  Tktnlap,  1  Desaus.  Rep  27  1 
305.  Tuniijirnd  v  Hawkins,  1  M'Cord's  Rip.  272.  See  the  note  to  Cruise>& 
Digest,  vol.  vi.  page  63,  2d  Am.  edition,  for  the  law  on  this  subject  in  the  several 
States;  and  the  note  to  Weslbeech  \    funned//,  1  Ves   $  Beam   362  Am   edil 

(4)  Pearson  v.  Wight  man,  2  Rep.  Const.  Court,  {So.  Carolma)  :1  ; 


CHAP.   I.]  OF    WILLS    AND    CODICILS.  2 

see  them  attest  it,  it  is  a  good  attestation  within  the  statute,  (lj 
But  if  the  testator  be  not  so  situated  that  he  can  see  them  attest  the 
will,  it  is  not  a  good  attestation  thereof  (d).  (2) 

The  wife  of  an  acting  executor  taking  no  beneficial  interest  un- 
der the  will,  is  a  competent  attesting  witness  to  prove  the  execu 
lion  of  it,  within  the  description  of  a  credible  witness  (e).  (3) 

And  an  executor  clothed  with  a  trust  to  pay  debts,  and  to  lay 
out  money  for  the  benefit  of  the  testator's  children,  and  with  pow- 
er to  sell  freehold  lands  in  fee,  but  taking  no  beneficial  interest  un- 
der the  will,  is  a  good  attesting  witness  to  it  (/)-(4) 

A  will,  as  it  respects  personal  property,  is  an  indefinite  disposi- 
tion of  all  the  testator  may  be  possessed  of  at  his  death  (g),  inclu- 
sive of  chattel  leases,  whether  they  were  his  at  the  time  of  making 
his  will  or  not  (A),  and  is  of  two  species,  written,  or  nuncupative: 
if  of  the  former,  it  may  be  committed  to  writing  either  by  the  tes- 
tator himself,  or  by  his  directions  (/);  nor  is  the  affixing  of  his  seal 
to  the  instrument,  nor  the  presence  of  witnesses  at  its  publication, 
essential* to  its  validity;  (5)  yet  it  is  safer,  and  more  prudent,  and 
leaves  less  in  the  breast  of  the  ecclesiastical  judge,  if  it  be  not  only 

(d)  Forrester  v.  Figou,  1  Maul.  8t  Sel.  Souls'  Coll;  v.  Codrington,   1  P.  Wms. 

9.  598.    Brydges  v.  Duch.  of  Chandos,  2 

(c)  Bettison  v.  Bromley,  12  East.  250.  Tes.  jun.  427. 

(/)  Fhipps  v.  Pitcher,  6  Taunt.  Rep.  (//)  Wind  v.  Jekyl,  1  P.  Wms.  575, 

220.  l.Madd.  Rep.  144.  (i)     Huntingdon  v.  Huntingdon;  2 

(g)  Okev.  Heath,  1  Yes.  141.     All  Phill.  Rep.213.  Sikes  v.  Snaith,  ib.  356, 


(1)  Mason  v.  Harrison  et  al.  5  Harr.  &  Johns.  480. 

(2)  Dunlap  v.  Dunlap,  4  Desaus.  311.     Edelen  v.  Hardy's  Lessee,  7  Harr.  & 
Johns.  61. 

(3)  Hawley  v.  Brown,  1  Root's  Rep.  494. 

(4)  Though  the  general  practice  of  the  English  Chancery,  to  admit  a  trus 
tee  as  a  witness,  has  been  uniformly  adopted  in  Pennsylvania,  (Drum's  Lessee  v. 
Simpson,  6  Binn.  478.)  an  executor  who  is  plaintiff'  in  a  feigned  issue  to  try  the 
validity  of  a  will,  is  not  a  competent  witness  in  support  of  the  will,  being  liable 
for  costs.  Vansanl  v.  Boileau,  1  Binn.  444.  A  devisee,  not  a  party  to  the  issue 
who  attested  the  will,  is  a  good  witness  to  prove  it,  if  before  the  trial  she  and  her 
husband  transfer  their  interest,  and  receive  a  release  to  the  husband  of  all  actions 
from  the  transferee.  Kerns  v.  Sexman,  16  Serg.  &.  Rawle,  315.  And  the  wife 
of  a  legatee,  or  the  husband  of  a  devisee,  is  a  competent  witness  on  the  proper 
release  being  executed,  though  it  be  not  accepted.  Brayfield  v.  Brayfield,  3  Harr 
&  Johns.  208,  which  was  the  case  of  a  nuncupative  will.  Shaffer's  Lessee  v.  Corbet f, 
3  Harr.  &.  M'Hen.  513.  In  Massachusetts  an  executor,  who  is  a  mere  trustee,  and 
takes  no  beneficial  interest  under  the  will,  is  an  incompetent  witness  to  prove  the 
execution  of  the  will,  or  the  sanity  of  the  testator;  and  the  circumstance  of  his 
not  being  a  party  to  the  record,  or  not  a  subscribing  witness  to  the  will,  makes  no 
difference.  Durant  v.  Starr,  11  Mass.  Rep.  527.  Scars  v.  Dillingham,  12  Mass 
Rep.  358.  But  in  England,  in  ejectment  against  a  devisee,  where  the  question 
turns  upon  the  sanity  of  the  testator,  an  executor,  who  takes  a  pecuniary  inl cr- 
est under  the  will,  is  a  competent  witness  to  support  it;  inasmuch  as  the  verdict 
would  only  have  the  effect  of  establishing  the  will  as  to  the  lane!,  and  would,  in 
any  proceeding  to  establish  the  will  as  to  the  personalty,  be  treated  as  re  tit!'* 
alios  acta.     Doc  v.  Teage,  5  Darn   &  CressNj    335 

(5)  Ace.  (So.  Carolina,)    White  \    mimes,  1  M 'Cord's  Rep    L3< 


2  OF    WILLS    AND    CODICILS.  [BOOK  I, 

signed  by  the  testator,  but  also  published  in  tbc  presence  of  wit- 
nesses (i). 

But  although  the  testator's  seal,  and  the  attestation  to  the  will, 
and,  under  certain  circumstances,  even  his  signature,  may  be  omit- 
ted, and  still  it  may  operate  as  an  available  dis[3]position  of  per- 
sonal estate  ( k);  (1)  yet  if,  on  the  omission  of  either  of  those  solem- 
nities, a  fair  presumption  may  be  raised  of  an  abandonment  of  in- 
tention on  the  part  of  the  deceased,  or  that  his  intention  was  mere- 
ly ambulatory,  the  instrument  shall  have  no  effect.  Thus,  where 
the  party  wrote  a  paper  purporting  to  be  a  testamentary  disposi- 
tion of  his  property,  to  which  a  clause  of  attestation  was  added, 
but  not  filled  up,  the  court  thought  it  reasonable,  from  the  want  of 
witnesses,  to  infer  that  he  had  changed  his  mind,  and  pronounced 
for  an  intestacy.  So,  where  the  party  had  merely  sealed  the  pa- 
per propounded  for  a  will  without  signing  it,  from  the  omission  of 
the  signature,  the  inference  and  decision  were  the  same.  (2  J  In 
these  and  the  like  cases,  the  framer  of  the  instrument  appears  evi- 
dently to  have  contemplated  a  farther  solemnity,  as  essential  to  its 
perfection;  and  such  solemnity  not  having  been  superadded,  and 
the  instrument  being  left  inchoate  and  imperfect,  a  change  of  inten- 
tion may  reasonably  be  presumed  (I).  But  such  presumption  may 
be  repelled  by  evidence,  as  by  shewing  that  the  party  was  suddenly 
arrested  by  death,  or  incapacitated  by  illness,  before  the  instrument 
could  be  conveniently  perfected  (m),  or  by  proving  his  recognition 
of  it  in  extremis,  or  by  circumstances  shewing  he  intended  it  to 
operate  in  that  form,  for  the  presumption  from  such  an  omission 
that  he  intended  doing  something  morcj  is  slight,  and  may  be  re- 
pelled by  slight  circumstances  (n). 

By  stat.  33  Geo.  3.  c.  28.  §  14.  and  35  Geo.  3.  c.  14.  §  16.,  it  is 
enacted,  that  all  persons  possessed  of  any  share  or  interest  in  the 
funds  or  any  estate  therein,  may  devise  the  same  by  will  in  writ- 
ing, attested  by  two  or  more  credible  witnesses.  But  it  has  been 
adjudged  that  although  the  same  should  not  be  so  bequeathed,  yet 
it  devolves  on  the  executor  in  trust  for  those  who  are  entitled  to 
the  personal  estate  (o). 

With  regard  to  nuncupative  wills,   the  unqualified  allowance  ol 

(/')  2   61.  Com.  501,  502.  Godolph.  and  see  Walker  v.  Walker,  1  Mcri.  Rep 

p.  1.  c.21.  s.  2.     Vide  Limbers' v.  Ma-  503. 

son,  Com.  Hep.  451.  (m)    Baillie  v.  Mitchell,  in  Prerog, 

(/.)  Read  v.  Phillips,  2  Phill. Rep.  122.  Court,  1805. 

(/)  Mathews  v.  Warner,  4  Ves.  jun.  (n)  Harris  v.  Bedford,  2  Phill.  Rep 

lo6.  and  5  Ves.  jun.  2.3.   Griffin's  case,  177. 

cited  in  Mathews  v.  Warner,  and  in  ex-  («)  Ripley  v.  Watcrworth,  7  Ves.  jun 

parte    Fearon,   5   Ves.   jun.    644.  and  452. 
Coles  v.  Trccolhick,   9  Ves.  juii.  249. 

(1)  Brown's  Ea    \    Tilden,  5  Ilarr.  &  Johns.  371. 

(2)  Tilgkmanv.  Sleuart,'4  Han  8tiJohns  156,  Case  of  A.  Stewart's  Will, 
(stated)  4  II  in    :     Fohra    162      See  Witlurspoon'^tHdrs^v,  fVithcrspooi      E 

mi  ord,   i  f0 


CHAP.   1.]  OT'    WILLS    AND    CODICILS.  4 

them  was  found  productive  of  the  greatest  frauds,  [4]  and  it  he 
came  necessary  to  subject  them  to  very  strict  regulations.  Accord 
ingly  by  the  stat.  29  Car.  2.  above-mentioned,  it  is  enacted,  that 
no  such  will  shall  be  good,(l)  where  the  estate  thereby  bequeathed 
shall  exceed  the  value  of  thirty  pounds,(2J  that  is  not  proved  by 
the  oaths  of  three  witnesses  at  the  least,  who  were  present  at  the 
making  thereof  ( who,  by  stat.  4  &  5  Jinn.  c.  16.,  must  be  such  as  are 
admissible  on  trials  at  common  law), (3)  nor  unless  it  be  proved,  that 
the  testator,  at  the  time  of  pronouncing  the  same,  did  bid  the  per 
sons  present,  or  some  of  them,  bear  witness  that  such  was  his  will, 
or  to  that  eflect;(4)  nor,  unless  such  nuncupative  will  were  made 
in  the  time  of  the  last  sickness  of  the  deceased,  and  in  his  dwelling- 
house,  or  where  he  had  been  resident  for  the  space  of  ten  days  oi 
more,  next  before  the  making  of  such  will,  except  where  such  per- 
son  was  taken  sick  from  home,  and  died  before  his  return;  nor, 
after  six  months  past  after  the  speaking  of  the  pretended  testamen- 
tary words,   shall  any   testimony  be  received  to  prove  any  will 

(1)  In  Pennsylvania,  by  the  3d  and  4th  sections  of  the  act  of  1705,  which  are 
almost  transcripts  from  the  stat.  29  Cur.  2.  (Purd.  Dig.  801.  1  Dall.  Laws,  53. 
1  Sm.  Caws,  33.)  "No  nuncupative  will  [shall]  be  good,  where  the  estate  thereby 
bequeathed  shall  exceed  the  value  of  thirty  pounds,  that  is  not  proved  by  two  or 
more  witnesses,  who  were  present  at  the  making  thereof,  nor  unless  it  be  proved 
that  the  testator,  at  the  time  of  pronouncing  the  same,  did  bid  the  persons  pre- 
sent or  some  of  them,  bear  witness  that  such  was  his  will,  or  to  that  effect;  nor 
unless  such  nuncupative  will  be  made  in  the  time  of  the  last  sickness  of  the  de 
ceased,  and  in  the  house  of  his  or  their  habitation  or  dwelling,  or  where  he  or  she 
hath  been  resident  for  the  space  of  ten  days  or  more,  next  before  the  making  of 
such  will,  except  where  such  person  was  surprised  or  taken  sick,  being  from  his 
own  house,  and  died  before  he  returned  to  the  place  of  his  or  her  dwelling." 

"After  six  months  past,  after  speaking  of  the  pretended  testamentary  words, 
no  testimony  shall  be  received  to  prove  any  will  nuncupative,  except  the  said  tes- 
timony, or  the  substance  thereof,  were  committed  to  writing  within  six  days  after 
making  of  the  said  will." 

And  by  the  5th  section,  "  No  letters  testamentary  or  probate  of  any  nuncupa- 
tive will,  shall  pass  the  seal  of  the  Register  general's  office,  in  the  respective  coun- 
ties of  this  province,  till  fourteen  days,  at  the  least,  after  the  death  of  the  testator 
be  fully  expired ;  nor  shall  any  nuncupative  will  be  at  any  time  received  to  be 
proved,  unless  process  shall  have  first  issued  to  call  in  the  widow  or  next  of  kin- 
dred to  the  deceased,  to  the  end  that  they  may  contest  the  same,  if  they  please." 

(2)  Wecden  v.  Bartlctt,  6  Munf.  123.  Thirty  dollars  is  the  amount  in  Virginia. 
The  amount  of  property  in  the  case  of  Brayfield  v.  Brayfield,  3  Harr.  &  Johns. 
208,  where  the  nuncupative  will  was  regularly  proved,  was  3236  Dollars  48  cents, 

(3)  A  legatee  who  releases  his  interest  is  admissible,  though  the  release  be  not 
accepted.  Brayfield  v.  Brayfield,  3  Ilarr.  &  Johns.  208.  A  free  negro  is  incom- 
petent in  Smith  Carolina  in  any  case  where  the  rights  of  white  persons  are  con- 
cerned.    White  v.  Helmes,  1  M'Cord,  430. 

(4)  Bennett  v.  Jackson,  2  Phill.  Hep.  190.  M'Gee  v.  M'Cunts,  1  M'Cord,  518. 
See  Mason  v.  Dunman,  1  Munf.  456,  where  notes  dictated  animo  lestandi  to  a  per- 
son by  the  decedent,  with  the  view  to  have  a  written  will  prepared,  were  estab- 
lished (in  Virginia)  as  a  good  Jiuncuputive  will,  though  a  written  one  was  pre- 
pared from  them,  which  the  testator  was  unable  to  execute,  being  delirious.  The  f 
factum  of  a  nuncupative  will  requires  to  be  proved  by  evidence  more  strict  and 
stringent  than  that  of  a  written  one,  in  addition  to  all  the  several  requisites  to  its 
validity,  under  the  statute  of  frauds,  being  proved^  to  entitle  it  to  probate,  he- 
mann  v.  Bonsull,  1  Addam's  Rep.  389, 


4  OF    WILLS    AND    CODICILS.  [BOOK    I. 

nuncupative,  except  the  testimony,  or  the  substance  thereof,  wen 
committed  to  writing  within  six  days  after  the  making  of  the  said 
will  (o). 

Soldiers  in  actual  military  service,  and  mariners,  or  seamen  at 
sea,  are  exempted  from  the  provisions  of  this  act.(l)  The  former 
may  at  this  day  make  nuncupative  wills,  and  dispose  of  their  goods, 
wages,  and  other  personal  chattels,  without  those  forms  and  so- 
lemnities which  the  law  requires  in  other  cases  (p). 

[5]  But,  with  respect  to  the  latter,  this  licence  no  longer  exists. 
The  perpetual  impositions  practised  on  this  meritorious  and  un- 
suspecting body  of  men  induced  the  legislature  to  adopt  a  new  po- 
licy, and  to  divest  them  of  a  privilege,  which,  instead  of  being 
beneficial  to  them,  was  perverted  to  purposes  the  most  injurious. 

Many  salutary  regulations  were  accordingly  prescribed  by  the 
statutes  26  Geo.  3.  c.  63.,  32  Geo.  3.  c.  34.,  and  49  Geo.  3.  c.  10S., 
in  regard  to  the  making  and  probate  of  the  wills  of  petty  officers 
and  seamen  in  the  king's  service,  and  of  non-commissioned  officers 
of  marines,  and  marines  serving  on  board  a  ship  in  the  king's  ser- 
vice, since  however  repealed,  and  other  regulations  substituted  by 
the  statute  55  Geo.  3.  c.  60,  but  which  I  shall  defer  specifying  till 
I  treat  of  probates. 

A  codicil  is  a  supplement  to  a  will,  annexed  to  it  by  the  testa- 
tor, and  to  be  taken  as  part  of  the  same,  either  for  the  purpose  of 
explaining,  or  altering,  or  of  adding  to,  or  subtracting  from,  his 
former  dispositions  (iff. 

A  codicil  may  be  annexed  to  the  will,  either  actually  or  con- 
structively. It  may  not  only  be  written  on  the  same  paper,  affixed 
to,  or  folded  up  with  the  will,  but  may  be  written  on  a  different 
paper,  and  deposited  in  a  different  place. 

A  codicil  may  be  annexed  either  to  a  devise  of  lands,  or  to  a 
will  of  personal  estate.  To  alter  the  former  a  codicil  [6]  must  by 
the  statute  of  frauds  be  in  writing,  and  signed  by  the  devisor,  or 
some  other  person  in  his  presence,  and  by  his  express  directions, 
and  be  subscribed  in  his  presence  by  three  or  four  credible  witnes- 
ses (r).  To  a  will  of  personal  estate  it  may  be  either  written  or 
nuncupative,  provided  in  case  of  its  being  the  latter,  it  merely  sup- 
ply an  omission  in  the  instrument.  Therefore  A.  having  disposed 
of  part  of  his  effects  by  his  will  in  writing,  may  dispose  of  the  re- 
sidue by  a  nuncupative  codicil  (s).     But  by  the  same  statute,  as 

(o)  Sec  Miller  v.  Miller,  3  P.  Wms.  (>•")  Onions  v.  Tyrer,  1  P.  Wms.  344. 

356.  &  note  1.  ibid.  vid.  Dougl.  244.  note  2. 

(p)  1  Bl.  Com.  417.  Stat.  29  Car.  2.  Ellis  v.  Smith,  1  Ves.  jan.  11,  and  infr. 

c.  3.  8.23.  5  W.3.  c.  21.  s.  6.  15. 

0/)  2  Bl.  Com.  500.    Swinb.  Part  1.  (s)  Com.  Dig.  Devise  (C.)  Raym.334. 


(1)  "  Provided  always,  that  notwithstanding  this  act,  any  mariner  or  person  be- 
ing at  sea,  or  soldier  being  in  actual  military  service,  may  dispose  ol'his  moveables, 
wages  and  personal  estate,  as  he  or  they  might  have  done  before  this  act."  Act 
of  1705,  sect.  7.     Purd.  Dig.  804.     1  Dall.  Laws,  53.     1  Sm.  Laws,  33. 


CHAP.  I.]  OF   WILLS    AND    CODICILS.  6 

we  shall  presently  see,  such  codicil  shall  not  operate  to  repeal,  ov 
alter  a  will.     A  written  codicil  respecting  personal  estate  is  au 
thenticated  in  the  same  manner  as  a  will  of  such  property. 

In  respect  to  copyholds,  they  are  not  within  the  statute  of  frauds 
A  devise  of  them  operates  only  as  a  declaration  of  uses  on  the  sur- 
render to  the  use  of  the  will :  if,  therefore,  the  form  required  by 
the  surrender,  which  is  usually  nothing  more  than  a  testamentary 
declaration  in  writing,  be  observed,  it  is  sufficient  without  any 
witness;  and  till  that  statute  required  all  declarations  of  trusts  to 
be  in  writing,  even  a  nuncupative  will  of  copyholds  was  an  effect- 
ual declaration  of  the  uses,  where  the  surrender  was  silent  as  to  the 
form  (/). 

[7]  But  a  devise  of  customary  freeholds,  where  there  is  no  cus- 
tom to  surrender  to  the  use  of  the  will,  must  be  pursuant  to  the 
statute  (w). 

An  estate- pur  auter  vie,  being  freehold,  will  pass  by  such  a  will 
only  as  is  so  executed  (v). 

In  regard  to  terms  for  years,  as  they  fall  within  the  description 
of  personal  estate,  (1)  they  may  be  disposed  of  by  will  according- 
ly, withlhis  distinction;  If  they  are  terms  not  in  gross,  but  vested 
in  trustees  to  attend  the  inheritance,  they  so  partake  of  its  nature, 
that  if  the  owner  devise  the  land  generally,  the  trust  of  the  term 
will  not  pass,  unless  the  will  be  so  attested  as  to  pass  the  inherit- 
ance (w).  If  they  are  terms  in  gross  of  which  the  testator  is  pos- 
sessed, he  may  transmit  them  by  the  same  kind  of  will  as  any 
other  personalty;  yet  he  cannot  create  them  by  will  without  ob- 
serving all  the  forms  essential  to  a  devise  of  real  estate;  because  the 
interest,  in  right  of  which  the  testator  creates  the  term,  is  real 
property,  and  the  creation  of  the  term  is  a  partial  devise  of  it  (x). 

If  a  will  give  a  sum  of  money  originally,  and  primarily  out  of 
land,  the  instrument  is  considered  as  a  devise  of  real  estate,  and 
must  be  executed  with  the  same  solemnities,  because  the  charge  is 
regarded  in  equity  as  part  of  the  land,  since  it  can  be'raised  only 
by  sale,  or  disposition  of  part  of  it  (y). 

[8]  Although  money  covenanted  to  be  laid  out  in  land  shall 
descend  as  a  real  estate,  and  may  be  devised   accordingly,  yet  he, 

(/)  Ilarg  Co.  Lilt.  114  b.    note  3.  and  Stat.  29  Car.  2.  c.  3.  s.  12.  and  14 

Tutfnell  it. Page,  2  Atk. 37.   S.C.  2 Bar-  Geo.  2.  c.  20. 

nard,  Ch.  Rep.  9.     Attorney  General  v.  (h>)  Harg.  Co.  Litt.   114  b.  note  3 

Barnes,  2  Vein.  598.     Dormer  v.  Tlnir-  Whitchurch  v.  Whitchurch,  Gilb.  Ca.  in 

land,2  P.  Wins.  510.   Harris  v.  Ingle-  Eq.  168.     S.  C.  2  P.  Wins.  236.     S.C 

dew,  3  P.  Wms.  96.  Carey  v.  Askew,  9  Mod.  127.     Villiers  v.  Villiers,  2  Atk 

2  Bro.  Ch.  Hep.  58.  Church  v  Mundy.  72.     Goodright  v.   Sales,  2  Wils.  329. 

12  Ves.  jun.  429.  Vid.  inf'r. 

(«)  Warde  v.  Warde,  Amb.  299.  (x)  Harg.  Co.  Lit.  114  b.  note  3. 

(*>)    See  Watk.  Princ.  Convey.   22.  (y)  Brudenell  v.  Boughton,  2  Atk 

•272. 


(1)  Ex  parte  Gay,  5  Mass.  Bop.  419.     Montague  v .  Smith,  13  Mass.  Rep.  39G. 
Ghaprrtan  \  ■  Uray,  15  Mass.  Rep.  439.     Brewster  v.  Hill,  1  New  Hump.  Rep.  350. 


2 


8  01-    WILLS    AND    CODICILS,  [BOOK  J. 

who  is  entitled  to  the   fee  of  -the  land  when   purchased,  may  dis 
pose  of  it  as  personal  property,  under  the  description  of  so  much 
money  to  he  laid  out  in  land,  by  a  will  which  is  not  attested  by 
Ihree  witnesses  (z). 

The  statute  of  frauds  has  been  held  not  to  be  applicable  to  the 
•  case  of  a  devise  of  land  in  Barbadoes  («),  because  acts  of  parliament 
passed  in  England  without  naming  the  foreign  plantations  will  not 
hind  them. 

A  will  may  be  void  from  the  incapacity  of  the  party  making  it, 
and  secondly,  it  may  be  annulled  by  cancelling,  or  revoking  it  (b). 

There  are  .three  grounds  of  incapacity;  the  want  of  sufficient 
legal  discretion;  the  want  of  liberty  or  free  will;  and  the  criminal 
conduct  of  the  party  (c).  (1) 

To  the  first  are  subject,  by  the  express  provision  of  the  stat.  34 
&  35  Hen.  8  c.  5.  all  infants  under  the  age  of  twenty-one  years  in 
regard  to  lands  (d).  (2)  In  respect  to  personal  estate,-  infants  un- 
der the  age  of  fourteen  years,  if  males,  (3)  and  of  twelve  years,  il 
females,  are  incompetent  to  bequeath  the  same  (e):  After  that  pe- 
riod their  incapacity  ceases:  although,  on  the  one  hand  it  has  been 
strangely  asserted,  that  an  infant  of  any  age,  even  of  four  years 
old,  may  make  a  testament  of  per[9]sonal  property  {/);  and  on 
the  other,  he  has  been  denied  before  eighteen,  to  be  competent  ( g); 
yet  this,  as  a  matter  of  ecclesiastical  cognizance,  must  be  determined 
by  the  ecclesiastical  law,  which  has  prescribed  the  rule  as  above 
stated  (h). 

But,  if  the  testator,  of  whatever  age,  were  not  of  sufficient  capa- 
city, that  will  invalidate  his  testament.     By  the  above-mentioned 
.  statute  of  the  34th  and  35th  Hen.  S.  a  will  of  lands  made  by  an 
idiot,   or  by  any  person   of  nonsane  memory,    is  declared  void. 
Persons  afflicted  with  madness,  or  any  other  mental  disability,  idi- 

(z)  Lingenv.  Sowray,  lP.Wms.  172.  (e)  Off.  Ex.  213, 214.  Harg.  Co.  Litt. 

291.  Edwards  v.  Countess  of  Warwick,  89  b.  note  6. 

2  P.  Wms.  17*1.     S.  C.  3  P.  Wins.  221.  (/)  Perkins,  s.  503  ;  but  that  seems 

note.     S.  C.  2  Eq.  Ca.  Abr.  298.  an  error  of  the  press  for  14.   Vide  Harg. 

(a)  Anon.  2  P.  Wms.  75.  Co.  Litt.  89  b.  note  6. 

{b)  2  Bl.  Com.  502.  ( g)  Harg.  Co.  Litt.  89  b. 

(c)  2  Bl.  Com.  496,  497.  (k)  2  Bl.  Com.  497.    Harg.  Co.  Litt. 

(rf)  Herbert  v.  Torball,   1  Sid.  162.  89  b.  note  6. 
Stat.  34  &  35  H.  8.  c.  5,  s.  14. 


(1)  4  Greenl.  Rep.  223.  Dietrich  v.  Dietrich,  5  Serg.  &  Rawle,  207.  Kussear 
v.  Arnold,  13  Serg.  &  Rawle,  323.  But  any  one  has  a  right  by  fair  argument  and 
persuasion,  or  by  virtuous  influence,  to  induce  another  to  make  a  will  in  his  favour. 
Miller  v.  Miller,  3  Serg.  &.  Rawle,  267.     Small  v.  Small,  4  dreenl.  Rep.  220. 

(2)  Although  the  Act  of  Assembly  (of  1705)  does  not  mention  the  common 
law  disabilities,  of  coverture,  infancy,  ideocy,  &c,  yet  these  disqualifications  exist 
in  Pennsylvania  as  well  as  in  England.     "West  v.  West,  10  Serg.  h  Rawle,  446. 

(3)  Dean,  Ex.  v.  Li  tilt  field,  1  Pick.   Rep.  239.     In  North  Carolina,  an  infant 
under  the  age  of  eighteen  years  cannot  dispose  of  his  personal  estate  by  will 
Williams  v.  Baker,  2  Car.  Law  Rep.  599. 


UHAP.   I.J'  OF    WILLS    AND    CODICILS.  9 

ots,  (1)  or  natural  fools,  or  those  whose  intellects  are' destroyed 
by  .age,  (2)  distemper,  or  drunkenness,  (3)  are  all  incapable  of  ma 
king  a  will  of  personal  estate,  during  the  existence  of  such  disabili- 
ty. In  this  class  also  may  be  ranked  those  persons,  who,  having 
been  born  deaf,  and  blind,  have  ever  wanted  the  common  sources 
of  understanding  (*').  But  a  will  is  not  affected  by  the  subsequent 
insanity  of  the  testator  (k).  (4)  And  if  a*  testator  be  subject  to  in- 
sanity, a  will  made  during  a  clear  lucid  interval  will  be  estab- 
lished (I).  (5) 

In  respect  to  the  incapacity  arising  from  the  want  of  liberty,  or 
freedom  of  will,  prisoners,  captives,  and  the  like,  are  not  by  the 
law  of  England  absolutely  disabled  to  make  a  testament;  but  the 
court  has  a  discretion  of  judging,  whether  from  the  special  circum- 
stances of  duress,  such  act  shall  be  construed  involuntary. 

A  married  woman  is  also  precluded,  by  the  aforesaid  stat.  34 
and  35  Hen.  8.  from  devising  lands.  (6)  Nor  has  she  the  [10] 
power  of  bequeathing  personal  estate.  Her  personal  chattels  be- 
long absolutely  to  the  husband.  He  may  also  dispose  of  her  chat- 
tels real,  and  he  shall  have  them  to  himself  in  case  he  survive;  an 
interest  which  necessarily  precludes  her  from  such  an  alicnation(w): 
yet  by  the  licence  of  the  husband,  (7)  she  may  make  a  testament, 

(i)  2  Bl.  Com.  497.  Dow's  Rep.  178. 

(k)  4  Co.  60.  (w)  2  Bf  Com.  497,  498.     4  Co.  51 

(/)    Clerke    v.    Cartwright,    1   Phill.  34  &.  35  Hen.  8.  c.  5.  s.  14. 
Rep.  90.     White  v.  Driver,  ib.   84.     1 


(1)  See  Rambler  v.  Tryon,  7  Serg.  &.  Rawl.  90.  Mere  feebleness  of  intellect. 
,li(nl  of  what  might  l.v  many  be  supposed  to  amount  to  idiocy,  is  insufficient  to 

render  a  will  void.     Dorhick  v.  Rcichenback,  10  Serg.   &  Rawle,   84.      Heister  v. 
Lynch,  1  feateS,  108. 

(2)  But  extreme  old  age  does  not  of  itself  disqualify  a  person  from  making  a 
will.  Van  Msl  v.  Hunter,  5  Johns.  Cha.  Rep.  158,  in  which  case  the  testator  was 
between  90  and  100  years  old. 

(3)  But  drunkenness  merely  of  itself  is  no  legal  exception  to  the  validity  of  a 
will;  but  where  a  man's  senses  are  besotted  by  habitual  intoxication,  and  his  un- 
derstanding gone,  he  can  make  no  will.  Stand  v.  Douglas,  2  Yeates,  48.  Higlit 
v.  Wilson,  1  Dall.  94— the  facts  of  the  case.  Temple  v.  Temple,  1  Hen.  h  Munf. 
476.  In  Pennsylvania,  the  Act  of  25th  Feb.  1819,  relative  to  habitual  drunkards, 
provides,  that  like  proceedings  shall  be  had  to  determine  whether  a  person  be 
an  habitual  drunkard  as  in  the  cases  of  persons  non  compotes  mentis,  and  upon  the 
return  of  an  incpiisition  finding  that  a  person  by  reason  of  habitual  drunkenness 
has  become  incapable  of  managing  his  estate,  the  Court  of  Common  Pleas  shall 
appoint  two  guardians  or  trustees,  who  shall  have  the  care  and  management  of 
his  estate,  and  apply  so  much  of  the  same  as  shall  be  necessary  to  his  maintenance 
and  that  of  his  family.  (Purd.  Dig.  190.)  No  case,  it  is  believed,  has  occurred, 
in  which  the  effect  of  such  an  imposition,  upon  the  right  of  the  habitual  drunkard 
to  make  a  will,  has  been  determined. 

(4)  Hughes  v.  Hughes's  E.v.  2  Munf.  209. 

(5)  And  if  a  person  who  has  been  placed,  under  guardianship  a.-,  non  compos 
mentis,  be  restored  to  his  reason,  he  is  capable  of  making  a  will,  although  the  1(1 

ers  of  guardianship  remain  unrevoked.     Stone  v.  Damon,  12  Mass.  Rep.  488. 

(6)  See  Ante,  p.  8,  note  (2)      Cooper's  Justinian,  494. 

(7)  Osgood  \    Brcah  12  Mass.  Rep  532      The  testament  being  in  the  hush- 


10  OF    WILLS    AND    CODICILS.  [BOOK  I. 

and,  on  marriage,  he  frequently  covenants  with  her  friends  to  al- 
low her  that  privilege  (n).  So,  where  he  stipulates  that  personal 
property  shall  be  enjoyed  by  the  wife  separately,  it  must  be  so  en- 
joyed with  all  its  incidents,  one  of  which  is  the  power  of  disposi- 
tion by  a  testamentary  instrument  (o).  (I)  And  where  she  has 
such  power  over  the  principal,  it  extends  also  to  its  produce  and 
accretions  (p).  (2) 

But  where  a  feme  covert,  in  consequence  of  such  a  contract  on 
the  part  of  the  husband,  makes  a  writing  in  the  nature  of  a  will,  it 
seems  not  in  a  strict  legal  sense  to  operate,  as  a  will,  but  as  an  ap- 
pointment; yet  it  is  so  far  testamentary,  that  it  must  be  proved  in 
the  spiritual  court,  before  her  legatee  shall  be  entitled  (q).  (3) 

If  the  husband  be  banished  for  life  by  act  of  parliament,  the 
wife  is  entitled  to  make  a  will  (r).  (4)  So  where  personal  [11]  pro- 
perty is  given  in  trust  for  the  sole  and  separate  use  of  a  married 
woman,  she  may  dispose  of  it  by  will,  without  her  husband's  as- 
sent (s). 

A  feme  covert  may  also  make  a  will  of  effects,  of  which  she  is 
in  possession  in  autre  droit,  in  a  representative  capacity;  for  they 
never  can  be  the  property  of  the  husband  (/). 

The  queen  consort  has  a  general  right  to  dispose  of  her  person- 
al estate  by  will,  without  the  consent  of  her  lord  (u). 

Persons  incompetent  by  their  crimes  are  all  traitors,  and  felons 
without  benefit  of  clergy,  from  the  time  of  their  conviction  ami 
attainder,  or  outlawry,  which  amounts  to  the  same;  for  then  their 
property  is  no  longer  at  their  own  disposal,  but  is  altogether  for 
fcitcd  (v). 

(»)  Dr.  h   Stud.  D.  1.  c.  7.     4  Bac  ib.  612.     2  Bl.  Com.  498.     Rex  v.  Bet 

Abr.  244.     Vide  Rex  v.  Bettesworth,  tesworth,  Stra.  891. 
Stra.  891.  (r)  4  Bac.  Abr.   214.     Countess   of 

(o)  4  Bac.  Abr.  244.  in  note.   Fetti-  Portland  v.  Probers,  2  Vern.  104. 
place  v.  Gorges,   3  Bro.   Ch.    Rep.   8.         (,s)  Fettiplace  v.  Gorges,  3  Bro.  Ch 

S.  C.  1  Ves.  jun.  46.  Rep.  8.  S.C.  1  Ves.  jun.  46.    Tappen- 

.     (jo)  Gore  v.   Knight,   2  Vern.   535.  den  v.  Walsh,  1  Phil].  Bep.  352. 
Herbert  v.  Herbert,  Prec.  Ch.  44.  355.  (/)  Oil".  Ex.  87.    Godolph.  1.  10,  11. 

(</)  Ross  v.  Ewer,  3  Atk.  156.     Jen-  Vin  Abr.  141. 
kin  v.  Whilehouse,  1   Burr.  431.     Co-         (u)  Harg\  Co.  Lilt.  133. 
tbay  v.  Sydenham,  2  Bro.  Ch.  Rep'.  392.         (r)  2  lib  Com.  199.  4  Bl.  Com.  380, 

Stone  v.  Forsyth,  Doug!  707.    Vide  al-  381.387.      liac.  Abr.  tit.  Outlavvrv.     2 

so  Cotter  v.   Layer,   2   P.  Wins.  624.  Hale,  P.  C.  205.     Godolph.  p.  1.  c.  12. 

Duke  of  Marlborough  v.  Lord  Godol-  s.  8. 
phin,  2  Ves.  75.  Southby  v.  Stonchouse, 

handwriting  is  evidence  'of  his  assent.  Grimht\.  (,'rhnhe,  1  Desaus.  Rep.  366. 
But  in  the  absence  of  any  stipulation  or  agreement,  made  between  them,  that  her 
personal  property  sball  be  held  or  enjoyed  by  the  wife  to  tier  separate  use,  a 
testamentary  disposition  by  ufoue  covert  of  ber  peisonal  property  »r  ckpses  in  ac- 
tion'm  favour  of  her  husband,  is  void,  though  made  $lth  h*B  Conse.nl  IlnnH  v 
lrcher,  1  M'Cord's  Uep.  225.  477.  OaseofSqraH  .1  Ncwek,  '.'  STCord's  Rep  453 
(1)1  M'Cord's  Itcp.  226.     1  Ycatcs,  225. 

(2)  1  M'Cord's  Rep.  226. 

(3)  1  Mason's  Ren    1M,   if,  > 

(4)  Wright  v.  W&gkl's  E*    2  Desaus  Rep 


CHAP.  I.]  OF    WILLS    AND    CODICILS.  1  1 

In  case  a  traitor,  or  felon  without  benefit  of  clergy,  shall  die  af- 
ter conviction,  ami  before  attainder,  his  lands  shall  pass  by  his  will, 
but  not  his  goods  and  chattels;  for  the  former  are  forfeited  only  on 
attainder,  the  latter  on  conviction  (w).  (1) 

Nor  shall  the  will  of  afeio  de  se,  so  far  as  it  respects  goods  and 
chattels,  have  any  operation;  for  they  are  forfeited  by  [12]  the  act 
and  manner  of  his  death;  but  a  devise  of  his  lands  shall  be  effectu- 
al, for  of  them  no  forfeiture  is  incurred  (x).  As  is  also  that  of  a 
party  guilty  of  felony,  not  punishable  with  death,  for  he  forfeits 
only  his  goods  and  chattels  {y).  And  a  felon  of  every  description 
may  devise  lands  held  in  gavelkind;  for  lands  of  this  tenure  arc 
not  forfeited  by  felony  (z). 

Outlaws  also,   though  merely  in  civil  cases,  are  intestable,  in  * 
respect  to  their  personal  property,  while  their  outlawry  subsists: 
for  their  goods  and  chattels  are  forfeited  during  that  time  (a). 

As*  for  persons,  guilty  of  other  crimes  inferior  to  felony,  as  usu- 
rers, and  libellers,  they  are  not  precluded  from  making  testa- 
ments (b)  ;  nor,  as  it  seems,  is  a  party  excommunicated  (c). 

An  alien,  with  whose  country  we  are  at  war,  if  he  have  not  the 
king's  licence  to  reside  here,  express,  or  implied,  is,  by  our  law, 
incapable  of  making  a  will;  but  if  he  have  such  licence,  he,  as  well 
as  an  alien  friend,  may  bequeath  his  personal  estate  (d).  (2)  They 

(«>)  4B1.  Com.  387.  Paine  v.  Teap,  1   Salk.  109.  Seel  fid. 

(x)  Plowd.  261.  Swinb.  106.  4  Bac  Shaw  v.  Culteris,  Cro.  Eliss.  851. 
Abr.  247.  4  Bl.  Com.  386.  3  Inst.  55.  '  (b)  tiodotph.  p.   1.  c.   12. 

(.y)  4  Bl.  Com.  97.     Co.  Litt.  391.  (c)  Off.  Ex.  17. 

.    (z)  2  Bl.  Com.  84.     4  Bl.  Com.  386.         (d)  1  Bl.  Com.  372.     Wells  v.  Wil 

Lamb.  Peramb.  634.  •  bams,  1  Lutw.  34.     1    Wooddes.  374. 

(«)    Fitzh.    Abr.    tit.    Descent,    16. 

2 . 

(1)  By  the  19th  section  of  the  19th  article  of  the  Constitution  of  the  state  of 
Pennsylvania,  it  is  provided,  "that  no  attainder  shall  work  corruption  of  blood, 
nor,  except  during'  the  life  of  the  offender,  forfeiture  of  estate  to  the  Common- 
wealth; the  estates  of  such  persons  as  shall  destroy  their  own  lives  shall  descend 
or  vest  as  in  case  of  natural  death,  Sic.  '* 

(2)  By  the  3d  section  of  the  Act  of  23d  Feb.  1791,  entitled  "a  supple- 
ment to  the  act  entitled  '  an  act  to  declare  and  regulate  echeats,'  "  it  is  provided 
that  "all  such  persons  [citizens  or  subjects  of  foreign  states]  shall  be  able  and 
capable  in  law  to  dispose  of  any  goods  and  effects  to  which  they  may  be  entitled 
within  this  state,  either  by  testament,  donation  or  otherwise,"  he.  (Purd.  Dig.  8, 
3  Dall.  Laws,  8.  3  Sm.  Laws,  4.)  Acts  of  assembly  have  been  passed  at  different 
periods  giving  to  aliens  in  Pennsylvania  a  more  or  less  restricted  right  to  acquhc 
hnd,  and  to  dispose  of  it  by  deed  or  will,  (Act  of  31  Aug;.  1778,  l'urd.  Dig.  7 
1  Dall.  Laws.  774.  1  Sm.  Laws,  461  ;  Act  of  23d  Feb.  1791 ;  10th  Feb.  1807, 
l'urd.  Dig.  8.  4  Sm.  Laws.  362;  Act  of  20th  March  1811,  Purd.  Dig.  9.  5  Sm. 
Laws,  211;  Act  of  22d  March  1814,  Purd.  Dig.  9.  1  Heed's  Laws,  178;)  and  by 
tlie  act  of  the  21th  March  1818  (Purd.  Dig.  9.^2  Reed's  Laws,  133,)  sect.  1.  it  is 
provided  that  "from  and  after  the  passing  of  this  act,  it  shall  and  may  be  lawful 
for  all  and  every  foreigner  and  foreigners,  alien  or  aliens,  not  being  the  subject  or 

■  subjects  of  some  foreign  stale  or  power,  which  is  or  shall  be  at  the  time  or  times 
of  such  purchase  or  purchases,  at  war  with  the  United  Slates  of  America,  to 
purchase  lands,  tenements,  and  hereditament's,  within  this.  Commonwealth,  not 
exceeding  live  thousand  acres,  and  to  have  and  to  hold  the  same  to  lliein,  theil 
heirs  and.assigns,  forever,  as  fully  to  all  intents  and  purposes  as  any  natural  tlorn 
citizen  or  citizens  may  or  can  do," 


12  OF    WILLS    AND    CODICILS.  [BOOK  1 

can  neither  of  them  acquire  any  permanent  property  in  land.  They 
may,  indeed,  hire,  or  take  leases  for  years  of  houses  for  habitation 
(e),  which  chattel  [13]  interests,  it  seems,  they  may  dispose  of  by 
will  (/)  :  But  the  stat.  32  Hen.  3.  c.  6.  s.  13.  makes  void  all 
leases  of  houses  or  shops  to  an  alien  artificer,  or  handicraftsman. 
And  this  law,  however  contrary  it  may  appear  to  sound  policy, 
and  the  spirit  of  commerce,  is  still  in  force;  but  in  favour  of  aliens 
it  has  been  construed  very  strictly  (g). 

By  stat.  5  Geo.  1.  c.  27.,  British  artificers  going  out  of  the 
realm  to  exercise,  or  teach  their  trades  abroad,  or  exercising  their 
trades  in  foreign  parts,  who  shall  not  return  within  six  months,  af- 
ter due  warning  given  them,  shall  be  deemed  aliens,  and  incapable 
pf  taking  any  lands,  and  shall  forfeit  all  their  real  and  personal 
estates;  consequently,  their  wills  can  have  no  operation  here. 

Secondly,  a  will  of  personal  estate,  and  by  the  statute  of  frauds 
a  will  of  lands,  may  be  annulled   by  burning,  cancelling,  teasing, 
or  obliterating  the  same,  by  the  testator,  (1)  or  in  his  presence, 
and   by  his  direction  and  consent  (h).     And  a  will  of  either  spe 
cies  may  be  annulled  by  an  express,  or  implied  revocation  of  it.     . 

Although  a  testator  has  made  a  will  irrevocable  in  the  strongest 
terms,  yet  he  is  at  liberty  to  revoke  it  ;  for  he  shall  [14]  not,  by 
his  own  act  or  expressions,  alter'the  disposition  of  law,  so  as  to 
make  that  irjevocable,  which  is  of  an  opposite  nature  (i).  (2) 

With  respect  to  the  revocation  of  a  will  by  the  act  of  cancelling, 
it  is  in  itself  an  equivocal  act;  and  in  order  to  make  it  a  revoca- 
tion, it  must  be  shewn  quo  anirno  it  was  cancelled;  for,  unless 
that  appear,  it  will  be  no  revocation.  (3)  As,  if  A.  were  to  throw 
the  ink  upon  his  will  instead  of  the  sand,  although  it  might  be  a 
complete  defacing  of  the  instrument,  it  would  be  no  cancellation  : 

(e)  1  Bl.  Com.  371,  372.  7  Co.  Rep.  vid.  Jevons  v.  Harridge,  1  Sid.  309 
17.     Harg.  Co.  Litt.  2  b.  Jevons  v.  Livemere,  1  Saund.  7.     Pil 

(f)  Harg.  Co.  Lilt.  2  b.  note  8.  kington  v.  Peach,  2  Show.  135.    Bridg- 
Harg.  Co.  Litt.  1  Anders.  25.  ham   v.  Frontee,  3  Mod.  94.  Wells  v. 


N.  Bendl.    36.    vid.     Williams,  1  Salic.  46. 


also,   Caroon's  case,  Cro.   Car.  8.    Sed         fhj  Stat.  29  Car.  2.  c.  3.  s.  6. 
vid.  Co.  Litt.  2  b.  (ij  8  Co.  82. 

fgj  Harg.  Co.    Litt.  2  b.    note  7. 

« 

(1)  Johnson  v.  Brailsford,  2  Nott  &  M'Cord,  272.  The  word  "destroying" 
is  used  in  the  Act  of  Assembly  (of  South  Carolina)  instead  of  the  words  "  burn 
ing,  cancelling,  and  tearing"  in  the  statute  of  frauds;  but  the  construction  is  the 
same.  In  Pennsylvania,  implied,  constructive,  or  legal  revocations,  among  which 
arc  cancelling,  obliterating,  or  destroying  the  will,  still  subsist  as  they  were  he 
fore  the  Act  of  Assembly  (of  1765)  or  the  statute  of  frauds,  Lawson  v.  Morri 
.son,  2  Dall.  Rep.  289.;  and  the  Act  of  Assembly  being  silent  as  to  such  reyoc_- 
'tions  in  law,  they  may  be  proved  as  other  matters  of  fact,  without  regard  to  the 

form  prescribed  by  the  act  fur  the  probate  of  a  will,  Burns  v.  Burns,  4  Serg.  S- 
Rawle,  297. 

(2)  See  Matter  of  Nan  Miekle,  14  Johns.  Rep.  321.  The  case  of  an  implied 
revocation. 

0)  2  Yeates,  171  7  Johns  Rep  3'.'"  X(.uun<r.\  gentries,  7  llarr  ■•.Johns. 
588 


CHAP.  I.]  OF    WILLS    AND    CODICILS.  14 

or,  suppose  A.,  having  two  wills  of  different  dates  in  his  posses- 
sion, should  direct  B.  to  cancel  the  former,  and  through  mistake 
he  should  cancel  the  latter  ;  such  an  act  would  he  no  revocation  ot 
the  last  will:  or,  suppose  A.  having  a  will  consisting  of  two  parts, 
throws  one  unintentionally  into  the  fire,  where  it  is  burnt,  it  would 
be  no  revocation  of  the  devises  contained  in  such  part  (k):  (I)  or 
if  A.  upon  a  supposition  that  he  had  executed-  a  second  will,  ac- 
cording to  the  statute  of  frauds,  containing  devises  of  the  real  es 
late  precisely  the  same  as  those  in  the  first,  and  to  the  same  per- 
son, cancel  «uch  former  will,  the  devises  shall  not  be  revoked,  since 
the  cancelling  was  upon  an  evident  mistake  (I).  (2)  And  where  a 
testator  being  angry  with  one  of  the  devisees  in  his  will,  began  to 
tear  it  with  the  intention  of  destroying  it  ;  and  having  torn  it  into 
four  pieces  was  prevented  from  proceeding  further,  partly  by  the 
efforts  of  a  by-stander,  who  seized  his  arms,  and  partly  by  the  in- 
treaties  of  the  devisee,  and  upon  that  became  calm;  and  having  put 
by  the  several  pieces,  he  expressed  his  satisfaction  that  no  material 
part  of  the  writing  had  been  injured,  and  that  it  was  no  worse;  upon 
the  facts,  the  verdict  of  a  jury  in  favour  of  the  will,  was  support- 
ed (m).  (3)  It  is  the  intention,  therefore,  that  must  govern  in  such 
cases,  and  parol  evidence  is  admissible  to  explain  it  (n).  (4) 

If  a  will  be  destroyed  during  the  lifetime  of  the  testator,  but 
without  his  knowledge,  it  will  be  substantiated  upon  satisfactory 
proof  thereof,  and  of  its  contents  (o).  (5) 

[15]  In  case  there  be  duplicates  of  a  will,  one  in  the  custody  of 
the  testator,  the  other  not  ;  and  the  testator,  with  an  intention  to 
revoke  his  will,  cancels  that  which  is  in  his  custod}-,  it  is  an  ef- 
fectual cancellation  of  both  (p). 

So  a  will  may  be  only  partially  cancelled  :  therefore,  if  A.  de- 
vise two  estates,  Black  Apre  to  B.  and  White  Acre  to  C.,  and,  af- 
ter the  execution  of  such  will,  expunges  that  part  which  relates  to 

(k)  Hyde  v.  Hyde,   ?Eq.  Ca.  Abr.  (n)    Burtenshaw  v.  Gilbert,    Cowp. 

409.  3  Cha.  Rep.   155.   S.  C.  Burten-  53. 

shaw  v.  Gilbert,  Cowp.  49.  8  Vin.  Abr.  (o)  Trevelyan  v.  Trevelyan,  1  Phill. 

146.  pi.  17.  Rep.   149. 

(/)  Onions  v.  Tyrer,  1  P.  Wms.  343.  (p)  Burtenshaw  v.  Gilbert,  Cowp.  54. 

345.      Burtenshaw  v.  Gilbert,    Oowp.  Onions  v.  Tyrer,  1  P.  Wms.  346.  S.  C. 

52.  2  Vern.    742.    Mason  v.  Liniberry,    4 

(to)    Perkes  v.  Perkes,   3  Barn.  &  Bun-.  2515.  S.  C.  Com.  Rep.  451.  Rick- 

Aid.  489.  ards  v.  Mumford,  2  Phill.  Rep.   123. 


(1)  Burns  v.  Burns,  4  Serg.  &  Rawle,  295. 

(2)  Semmes  v.   Semmes,  7  Harr.  &  Johns.  388. 

(3)  See  Giles's  Heirs  v.  Giles's  Ex.  Cam.  &.  Norw.  Rep.  174. 

(4)  Burns  v.  Burns,  4  Serg.  &  Rawle,  295.  Havard  v.  Davis,  2  Binn.  406. 
Gfife&'a  Heirs  v.  Giles's  Ex.  Boudinot  v.  Bradford,  2  Yeates,  170.  Bates  v. 
Holman,  3  Hen.  &.  Munf.  502. 

(5)  2  Yeates,  171.  Or  lost,  Legare  v.  Mi,  1  Bay,  464. :  and  an  issue  will  be  di- 
rected, on  satisfactory  proof  adduced,  to  try  whether  a  will  said  to  be  lost,  was 
ever  in  fact  executed,  and  what  were  its  provisions.  Brent  v.  Dodd,  Gilm.  Rep. 
211. 


15  OF    WILLS    AND    CODICILS.  [BOOK  I. 

the  disposition  of  While  Acre,  the  devise  of  Black  Acre  shall  not 
he  revoked  by  such  obliteration  (p).  (I) 

A  residuary  bequest  was  held  to  he  cancelled  by  striking  through 
with  a  pencil  all  the  disposing  part,  leaving  only  the  general  de- 
scription, with  notes  in  pencil  in  the  margin,  indicating  alteration 
and  a  different  disposition  of  certain  articles  (q).  (2) 

Alterations  in  pencil  of  a  will,  are  not  therefore  to  be  taken  as 
merely  deliberative,  but  are  to  be  considered  as  equally  valid  as  if 
made  in  ink,  provided  it  appear  that  the  deceased  intended  them 
to  take  effect  (r).  (3) 

A  will  may  be  expressly  revoked  by  another  will,  or  by  a  codi- 
cil in  writing  ;  cither  of  which,  in  case  it  relate  to  land,  must  be 
executed  pursuant  to  the  statute  of  frauds  as  above  stated.  Such 
will  of  lands  may  be  also  revoked  by  writing  other  than  a  will,  or 
codicil;  and  then  such  other  writing  must  by  the  statute  be  signed 
by  the  devisor,  in  the  presence  of  three  or  four  witnesses  declaring 
the  same.  The  requisition  in  the  statute  of  the  signature  by  the 
devisor  to  such  revocation  in  the  presence  of  three  or  four  witness- 
es declaring  the  same,  is,  according  to  the  sound  construction  of 
the  statute,  applicable  merely  to  such  other  writing,  and  not  to  a 
will,  or  codicil  of  revocation;  since  the  legislature  could  not  intend 
to  require  that  a  will  or  codicil  amounting  to  a  revo[16]cation 
should  be  executed  in  one  mode,  and  a  will  or  codicil  originally 
disposing  of  lands  should  be  executed  in  another  (s ). 

These  provisions  of  the  statute  in  regard  to  revocation  do  not 
extend  to  personal  estate.  A  will  of  personal  estate  may  be  revok- 
ed by  another  will,  or  by  a  codicil,  or  other  writing  authenticated  in 
the  same  manner  as  a  will  of  such  property  (I).  But  by  the  same 
statute  (4)  no  will  in  writing  of  personal  estate  shall  be  repealed, 
or  altered  by  parol,  or  will  nuncupative,  .unless  the  same  be  com- 
mitted to  writing  in  the  testator's  life,  and  afterwards  read  to,  and 
allowed  by  him,  and  proved  so  to  be  by  three  witnesses  at  the 
least(«)-(5) 

O)  Sec  Sutton  v.  Sutton,  Cowp.  812.  (s)  Ellis  v.   Smith,  1  Ves.  jun.  11. 

and   Wirisor  v.  Pratt,  2  Brod.  &  Bing.  (/)  Vicl.  Brady  v.  Cubitt,  Doug*.  3& 

650.  Doe  v.  Pott,  ib.   690.  n.  2.     Onions  v. 

(</)  Mence  v.  Mencc,   18  Vcs.  jun.  Tyrcr,  1  P.  Wms.  343.   Ellis  v.  Smith, 

348,  1  Vcs.  jun.  11. 

(/•)  Dickenson  v.  Dickenson,  2  Phill.  (u)  Vid.  infr. 
Rep.   173. 

(1)  Pr'mgkx.  Macphcrson's  Ex.  2  Desaus.  Rep.  524.  Jackson  v.  Holloway,  7 
Johns.  Rep.  394. 

(2)  Sec  Cogbill*.  CogbUl,  2  Hen.  &  Munf.  467. 

(3)  Such  alterations,  however,  are  more  equivocal  as  to  intention,  as  persons 
are  apt  to  make  pencil  marks  for  memoranda,  l'arkin  v.  Bainluidgc,  3  Phill. 
Bep.  322. 

(4)  The  6th  section  of  the  act  of  1705,  is  copied  vcrliatim  from  the  12th  sec- 
tionjpf  the  statute  of  frauds,  with  the  exception  of  the  number  of  witnesses  re- 
quired. By  the  act  of  assembly  the  witnesses  are  to  be  "two  or  more."  Purd 
1%  801.    1  Dall.  Laws,  53.    1  Sm.  Laws,  33- 

(5)  Ahrilz  v    though,    16  Serg.    &   Bawle,  403      The  provisions  of  the  act 


CHAP.   I.]  OK    WILLS    AND    CODICILS.  16 

Devises  of  customary  freeholds,  or  of  terms  vested  in  trustees  to 
attend  the  inheritance,  or  of  sums  of  money  primarily  charged  on 
lands,  must,  as  we  have  seen,  be  executed  pursuant  to  the  solemni- 
ties required  by  the  statute,  and,  consequently,  fall  within  its  pro- 
visions in  regard  to  revocation  (t). 

If  a  testator,  in  consequence  of  fraud,  or  misinformation,  or  mis- 
take in  regard  to  a  fact,  as,  for  example,  the  death  of  a  devisee,  or 
legatee,  who  is  living,  make  a  new  will,  the  former  instrument 
shall  not  be  revoked  by  the  latter  (u).  (I) 

[17]  It  is  essential  that  the  second  will  should  expressly  revoke, 
or  be  clearly  inconsistent  with  the  first,  in  respect  to  the  subject 
matter  of  such  will ;  for  no  subsequent  disposition  shall  revoke  a 
prior,  unless  it  apply  to  the  same  subject  (v).  It  is  also  necessary 
that  the  second  will  should  be  subsisting  and  effective  at  the  time 
of  the  testator's  death;  if,  therefore,  in  case  of  a  devise  of  lands, 
it  be  not  executed  according  to  the  statute  of  frauds,  it  is  not  ef- 
fective, and  is  as  if  no  second  will  had  existed  (w).(2)  So,  if  the 
second  will  be  effectually  cancelled  in  the  lifetime  of  the  testator, 
the  first  will  shall  operate  as  if  no  other  had  existed  ;  for  it  is  the 
only  will  subsisting  at  the  testator's  death  (x).  But  the  particu- 
lar circumstances  of  the  cancellation  and  the  case  must  be  looked 
to,  for  in  a  late  case  where  a  second  will  was  mutilated  so  as  to 
amount  to  a  cancellation,  such  cancellation  was  held  not  to  revive 
the  prior  will  of  nearly  similar  import  (y). 

In  case  a  party  leave  two  inconsistent  wills  of  the  same  date, 
neither  of  which  can  be  proved  to  have  been  last  executed  unless 
explained  by  some  act  of  the  testator,  they  are  both  void  for  un- 
certainty, and  will  let  in  the  heir  (z). 

The  makiri£  of  a  subsequent  codicil  does  not  invalidate  the  for- 
mer, unless  it  appear  to  be  so  intended.      Codicils,  however  nu- 

(t)    Brudcnell  v.  Boughton,  2  Atk.  Limbery  v.  Mason,   Com.  Rep.  451. 

272.  O)  Goodright    v.    Glazier,   4    Burr. 

(u)  Campbell  v.  French,  3  Ves.jun.  2512. 

321.  (y)  Moore  v.   Moore,  1  Phill.  Rep. 

(i>)  Onions  v.  Tyrer,  1  P.  Wms.  345.  375  and  406. 

in    note.       Harwood    v.    Goodwright,  (z)  Phipps  v.   Earl  of  Anglesea,    5 

Cowp.  87.     S..C..7  Bro.  P.  C.  344.  Bro.  P.  C.  45.    Onions  v.   Tyrer,  1  P. 

(w)  Hyde  v.  Hyde,  3  Ch.  Rep.  155.  Wms.  344.  note  1.      ■ 


extend  to  wills  of  land,  which  must  be  revoked  by  writing,  accompanied  with 
the  same  solemnities  as  a  will  of  personal  estate.  Luwson  v.  Morrison,  2  Dall. 
Rep.  289.  Boudinot  v.  Bradford,  2  Yeates,  170.  But  the  parol  republication  of 
a  former  will  in  writing  will  revoke  a  will  of  lands.  Havard  v.  Davis,  2  Binn. 
406. 

(1)  Though  a  devisee  who  by  force  or  fraud  prevents  a  testator  from  cancel- 
ling his  will  becomes  a  trustee  for  those  who  would  be  entitled  to  the  property 
in  case  the  revocation  had  taken  place,  the  will  is  not  thereby  revoked.  Gains 
v.  (•niiis,  2  Marsh.  Rep.  (Kentucky)  190. 

(.2)  Taylor  v.  Taylor,  2  Nott  &  M 'Cord,  485.  (So.  Carolina.)  Beid  ct  ux.  v. 
Borland,  14  Mass.  Rep.  208.     Belt  v.  Belt,  1  Harr.  &  M'Hen.  409. 


17  of' wills  and  codicils.  [book  I. 

merous,  may  be  all  effectual  (a).  But  a  codicil  may  be  virtually 
revoked  by  another  codicil  of  a  subsequent  date,  although  there 
are  no  express  words  of  revocation  in  the  latter  instrument  (b). 

[IS]  There  are  also  other  species  of  revocations  which  I  have 
not  mentioned.  The  statute  of  frauds  extends  not  to  implied  re- 
vocations, or  to  such  as  are  in  the  nature  of  ademptions. 

With  respect  to  implied  revocations,  they  depend  altogether  on 
the  supposed  intention  of  the  party.  The  law  will  presume  such 
intention,  and  allow  it  to  prevail,  in  case  the  circumstances  of  the 
testator's  situation  be  materially  altered.  Hence,  if,  after  the  mak- 
ing of  his  will,  he  marry,  and  have  a  child,  this  is  a  constructive 
revocation  of  the  will  which  he  made  in  a  state  of  celibacy  (c);  (1) 
so  marriage,  and  the  birth  of  a  posthumous  child,  afford  the  same 
inference  ;  or  rather  in  such  cases  a  tacit  condition  is  annexed  to 
the  will  at  the  time  of  making  it,  that  the  party  did  not  then  in- 
tend that  it  should  take  effect,  if  a  total  change  should  happen  in 
the  situation  of  the  family  (d).  But  the  presumption,  like  all 
others,  may  be  rebutted  by  every  sort  of  evidence  (e).  (2) 

Yet  it  seems  there  is  no  case  in  which  marriage  and  the  birth  of 
a  child  have  been  held  to  raise  an  implied  revocation,  unless  there 
has  been  a  total  disposition  of  the  whole  estate.  (3)  In  cases  of  per- 

(a)  Swinb.  Part  1.  s.  5.  Hitchins  v.  Spraage  v.  Stone,  Ambl.  721.  and  vid. 

Basset,  1  Show.  549.     Willet  v.   Sand-  Christopher    v.    Christopher,    4    Burr. 

ford,  1  Ves.  187.  2182.  note. 

(6)  Methuen  v.  Methuen,    2   Phill.         (d)  Lancashire  v.  Lancashire,  5  Term 

416.  Rep.  49. 

(c)  Lugg  v.  Lugg,  Ld.  Raym.  441.         (e)  Brady  v.  Cubitt,  Dougl.  31.  See 

Cook    v.    Oakley,    1    P.  Wms.     304.  1  P.  Wms.  304.  note   4. 
— _  _  - 

(1)  Per  M'Kean  C.  J.,  in  Lawson  v.  Morrison,  2  Dall.  Rep.  289,  decided  in 
1792.  Wilcox  v.  Rootes,  1  Wash.  Rep.  140.  See  a  case  mentioned  by  Carring- 
to?i,  J.  3  Call's  Rep.  341.     Brush  v.  Wilkins,  4  Johns.  Cha.  Rep.  506. 

(2)  Brush  v.  Wilkins.  The  presumption,  however,  (the  strength  of  which 
varies  according  to  circumstances,)  may  be  rebutted  by  evidence  (strong  in  pro- 
portion) to  show  that  the  testator  meant  it  to  operate  notwithstanding  his  marriage, 
and  the  birth  of  issue;  but  such  evidence  to  be  effectual,  must  satisfy  the  Court 
unequivocally.  Gibbons  v.  Cross,  2  Addam's  Rep.  455.  In  Pennsylvania  it  is 
provided  by  the  23d  section  of  the  act  of  19th  April  1794,  "that  where  any  per- 
son, from  and  after  the  passing  of  this  act,  shall  make  his  or  her  last  will  and  tes- 
tament, and  shall  afterwards  many  or  have  a  child  or  children  not  provided  for  in 
any  such  will,  and  die  leaving  a  widow  and  child,  or  either  widow  or  child,  al- 
though such  child  or  children  be  born  after  the  death  of  their  father,  ever}7  such 
person  so  far  as  shall  regard  the  widow,  or  child,  or  children  after  born,  shall  be 
deemed  and  construed  to  die  intestate,  and  such  child  or  children  shall  be  enti- 
tled to  such  purparts,  shares,  and  dividends  of  the  estate  real  and  personal  of  the 
deceased,  as  if  he  had  actually  died  without  any  will."  (Purd.  Dig.  802.  3  Dall. 
Laws,  521.  3  Sm.  Laws,  152.)  Marriage,  and  the  birth  of  posthumous  or  other 
issue,  since  the  passage  of  this  act,  do  not  amount  to  a  total  revocation  of  a  will 
made  by  a  single  man,  even  where  the  subsequent  issue  is  the  testator's  only  child. 
They  amount  to  a  revocation  pro  tanto  only,  namely,  so  far  as  regards  the  widow 
and  child;  but  as  respects  provisions  not  interfering  with  their  interests,  such  as 
the  appointment  of  executors,  or  a  power  to  sell  lands  for  the  payment  of  debts. 
&c.  the  will  remains  in  force.     Coates  v.  Hughes,  3  Binn.  498. 

(.1)  Per  Room  .!.  3  GalPs  Rep.  337. 


CHAP.  I.]  OF    WILLS    AND    CODICILS.  IS 

sonal  property  it  is  always  a  total  disposition,  because  by  the  ap- 
pointment of  an  executor,  the  whole  is  vested  in  him  (e). 

[19]  To  raise  this  presumption  of  a  revocation,  both  the  circum- 
stances of  a  man's  marriage  and  of  the  birth  of  a  child  must  con- 
spire (f):  neither  the  subsequent  marriage  of  a  man,  nor  the  sub- 
sequent birth  of  a  child,  shall  of  itself  have  that  effect,  (g)  (1). 

But  a  will  made  in  favour  of  children  of  n  first  marriage  shall 
not  be  revoked  by  a  subsequent  marriage,  and  the  birth  of  chil- 
dren of  such  subsequent  marriage,  the  second  wife  and  her  chil- 
dren being  provided  for  by  settlement  (h).  (2) 

In  case  where  a  testator,  a  widower,  having  a  son  and  two  daugh- 
ters, by  will  gave  all  his  real  and  personal  estates  in  trust,  subject 
to  debts,  for  those  children,  and  in  case  of  their  deaths  over,  and 
afterwards  married,  had  a  daughter  and  died;  the  general  principles 
of  this  branch  of  the  law  are  so  clearly  defined  by  the  Master  of 
the  Rolls,  that  it  is  thought  most  useful  to  introduce  his  judgment 
verbatim.  "Long  after  it  had  been  settled  by  decisions  of  the  ec- 
"  clesiastical  court,  with  the  concurrence  of  common  law  Judges 
"  sitting  in  the  Court  of  Delegates,  that  marriage  and  the  birth  of 
"a  child  would  amount  to  a  revocation  of  a  will  of  personal  pro- 
perty, it  remained  a  doubt  whether  such  an  alteration  of  circum- 
"  stances  would  have  the  same  effect  with  regard  to  a  will  of  real 
"  estate:  but  it  is  -now  settled,  that  even  a  devise  of  land  may  be 
"revoked  by  what  Lord  Kenyon,  in  the  case  of  Doe  on  the  de- 
"  mise  of  Lancashire  v.  Lancashire,  5  T.  Rep.  5S.,  calls  'a  total 
"change  in  the  situation  of  the  testator's  family.'  What  may  be 
"deemed  such  a  total  change  may  be  matter  of  controversy  in 
"  each  new  case;  but  all  the  cases,  in  which  hitherto  wills  of  land 
"have  been  set  aside  upon  this  doctrine,  have  been  very  simple  in 
u  their  circumstances;  and  such  as,  when  the  doctrine  was  once  re- 
"  ceived,  could  admit  of  no  doubt  with  respect  to  its  application. 
"  In  all  of  them  the  will  has  been  that  of  a  person,  who,  having 
"  no  children  at  the  time  of  making  it,  has  afterwards  married, 
"  and  had  an  heir  born  to  him.  The  effect  has  been  to  let  in  such 
"  after-born  heir  to  take  an  estate,  disposed  of  by  a  will,  made  be- 
"  fore  his  birth.     The  condition,  implied  in  those  cases,  was,  that 

(e)    Brady   v.    Cubitt,     Dougl.    39.  in  note. 
Southcot  v.  Watson,  3  Atk.  228.  (g)    Lancashire     v.     Lancashire,    5 

(/)  Woocles.  373.  vid.   Goodtitle  v.  Term  Rep.  51.  in  note.  White  v.  Bar- 
Newman,  3  Wils.  516.  and  2  Fonbl.  2d  ford,  4  Maul,  and  Sel.  10. 
edit.    350.    note    (b).     Sed  vid.    Lan-         (h)  Ex-parte  the  Earl  of  llchester, 
cashire  v.  Lancashire,  5  Term  Rep.  52.  7  Ves.  jun.  348. 


(1)  Brush  v.  Wilkins,  4  Johns.  Cha.  Rep.  506.  fsemble.J  Mousey  v.  Massey's 
Lessee,  4  Harr.  &  Johns,  141.  See  3  Mass.  Rep.  21.  In  North  Carolina,  before 
the  act  of  1808,  the  birth  of  a  child  after  the  making  of  a  will,  did  not  amount  to  a 
revocation.     M'Cay  v.  M'Cay,  1  Murphy's  Rep.  447. 

(2)  Yerby  v.  Yerby,  3  Call's  Rep.  334,  in  which  there  was  no  settlement,  and 
the  children  of  the  subsequent  marriage  were  totally  unprovided  for. 


19  OF    WILLS    AND    CODICILS.  [BOOK  I. 

"  the  testator,  when  he  made  his  will  in  favour  of  a  stranger  or 
"some  more  remote  relation,  intended  that  it  should  not  operate  if 
"  he  should  have  an  heir  of  his  own  body.  In  this  case  there  is 
"  no  room  for  the  operation  of  such  a  condition;  as  this  testator  had  • 
"  children  at  the  date  of  the  will,  of  whom  one  was  his  heir  appa- 
"  rent,  who  was  alive  at  the  time  of  the  second  marriage,  of  the 
"  birth  of  the  children  by  that  marriage,  and  of  the  testator's  death. 
"  Upon  no  rational  principle  therefore  can  this  testator  be  supposed 
"to  have  intended  to  revoke  his  will  on  account  of  the  birth  of 
"  other  children ;  those  children  not  deriving  any  benefit  whatsoever 
"  from  the  revocation;  which  would  have  operated  only  to  let  in 
"  the  eldest  son  to  the  whole  of  that  estate,  which  he  had  by  the 
"will  divided  between  that  eldest  son  and  the  other  children  of 
"the  first  marriage.  It  is  true,  the  ecclesiastical  court  has  decid- 
"  ed,  that  the  will  was  revoked  as  to  the  personal  estate  ;  that  is, 
"  in  opposition  to  their  decision  in  Thompson  v.  Sheppard  in 
"  1779  ;  where,  under  circumstances  precisely  the  same,  the  will 
"  was  held  not  revoked  even  as  to  the  personal  estate.  There  was 
"  in  that  case  an  appeal  to  the  Delegates,  but  it  was  not  prosecuted. 
"  The  revocation  however  as  to  the  personal  estate  had  an  effect, 
"  which  might  perhaps  have  been  intended  by  the  testator — that 
"of  letting  in  the  after-born  children  with  those  of  the  first  mar- 
"riage  :  but  the  principle  of  the  decision  has  no  bearing  whatso- 
"  ever  upon  the  devise  of  the  real  estate;  which,  according  to  my 
"opinion,  stands  unrevoked  {i)." 

In  a  late  most  important  case,  where  a  man  made  a  will,  provid- 
ing for  all  his  children  then  living,  and  with  which  his  wife  was 
ensient,  the  birth  of  other  children,  combined  with  circumstances 
of  large  increase  of  property,  and  declarations  of  the  testator, 
were  held  to  revoke  his  will  (k). 

If  a  single  woman  make  a  will,  her  subsequent  marriage  shall 
alone  revoke  it  (/);  nor  shall  it  be  revived  by  the  death  of  her  hus- 
band (m).  (1) 

;»  There  are  also  revocations  (n)  in  the  nature  of  ademptions.  If 
the  testator  do  any  act  inconsistent  with  the  operation  of  the  will, 
such  act  shall  amount  to  a  revocation  of  it.     To  render  a  cancella- 

(i)  Sheath  v.  York,   1  Ves.  &  Bea.  (/)  4  Co.  60.    .Cotter  v.  Layer,  2  P. 

390.  and  see  Holloway  v.  Clarke,  1  Phill.  Wms.  624.     Hodsden  v.  Lloyd,  2  Bro, 

Rep.  339.     Emerson  v.  Boville,   ibid.  C.  Ca.  534. 

342.  (m)  Doe  v.  Staple,  2  Term.  Rep.  695. 

(k)  Johnston    v.  Johnston,    1   Phill.  (■«)  Brudenell  v.  Boughton,   2  Atk. 

Rep.  445.  272. 

•      • 

(1)  Mr.  Cruise,  in  his  Digest  of  the  Law  of  Real  Property,  (2d  Am.  edit.  p.  IIS. 
vol.  2.)  states  the  law  to  be,  that  "  in  a  case  of  this  kind  if  the  wife  survive  her  hus- 
band, her  will  is  revived,  and  takes  effect  as  if  she  had  never  been  married."  See- 
also  ReevrSs  Dorn.  Relations,  161.  It  will  be  found  upon  examination  that  the 
case  of  Doev.  Staph  by  no  means  establishes  the  doctrine  of  the  text,  though 
some  of  the  dicta  of  Lord  Kan/on  support  it,  when  the  facts  of  the  case,  with  re 
ference  to  which  he  spoke'in  giving  judgment,  arc  not  taken  into  consideration 


CHAP.  I.]  OF    WILLS.  AND    CODICILS.  19 

tion  effectual,  we  have  seen,  the  intention  of  the  testator  must  in 
all  cases  concur,  and  an  implied  revocation  is  founded  entirely  on 
the  intention:  but  the  species  of  revocation  I  have  just  mentioned 
is  altogether  independent  of  intention  (o),  and  may  prevail  even  in 
opposition  to  it.  It  is  true  that  before  the  statute  of  frauds  the  in- 
[20]  tention  was  the  criterion.  It  was  therefore  held,  that  where 
A.  having  devised  lands  to  13.  -in  fee,  granted  to  B.  a  lease  of  the 
same  lands,  to  commence  after  A. 's  death,  such  act  revoked  the 
disposition  of  the  will,  on  the  ground  that  the  lease  clearly  implied 
an  alteration  of  intention,  namely,  to  give  the  devisee  a  less  estate 
(p).  (1)  But  since  the  statute  I  conceive  such  a  case  would  be  dif- 
ferently decided  :  The  lease  effectuating  no  alienation  of  the  sub- 
ject matter  of  the  devise,  would  not  be  held  to  defeat  the  opera- 
tion of  the* will;  nor  if  A.  were  to  devise  lands  to  B.  in  fee,  and 
afterwards  mortgage  to  him  the  same  lands  for  a  term  of  years, 
would  the  devise  be  revoked  (q).  On  the  same  principle,  since 
the  statute  of  frauds,  the  subsequent  act  of  the  devisor  must  be 
complete  to  produce  such  effect.  Before  the  statute,  a  deed  of 
feoffment  without  livery,  a  bargain  and  sale  without  enrolment,  a 
grant  of  reversion  without  attornment,  were  held  to  revoke  a  will 
of  lands,  on  the  ground,  that  although  these  acts  were  themselves 
imperfect,  yet  they  equally  indicated  a  change  of  the  devisor's  in- 
tention ;  but  since  the  statute,  I  apprehend  that  acts  thus  incom- 
plete, not  amounting  to  an  alienation  of  the  estate  inconsistent  with 
such  will,  would  not  be  more  effectual  to  revoke  it  than  a  subse- 
quent will  imperfectly  executed  (r). 

And  altogether  to  defeat  the  disposition  by  the  will,  there  must 
[21]  be  a  subsequent  conveyance  of  the  whole  estate.  It  must  be 
commensurate  with  the  appointment  which  the  will  has  made.  Ii 
the  inconsistency  between  the  disposition  by  the  will,  and  the  sub- 
sequent disposition,  be  merely  partial,  the  revocation  shall  not  ex- 
tend beyond  such  inconsistency.  As,  where  A.  devises  an  abso- 
lute estate  in  fee  to  B.,  and  afterwards,  by  a  subsequent  devise, 
gives  him  only  an  estate  tail  in  the  same  land,  it  is  a  revocation 
merely  to  the  extent  of  the  difference  between  an  estate  tail,  and 
an  estate  in  fee  (s).  So,  if  A.  devise  all  his  real  estate  to  B.,  and 
afterwards,  on  B.'s  marriage,  settle  upon  her  a  part  of  such  estate, 
in  respect  to  the  remaining  part  of  it  the  will  shall  operate  (£). 
So,  if  A.  devise  lands  in  fee  to  B.,  and  afterwards  grant  a  lease 
to  C.  for  a  term  of  years  to  commence  after  A.'s  death,  or  mort- 

* 

(o)  Abury  v.  Miller,  2  Atk.  598.  Par-  ibid.  664. 

sons  v.  Freeman,  3  Atk.  745.  (r)  Seel  vid.  ex-parte  the  Earl  of  II 

(p)  Coke  v.  Bullock,  Cro.  Jac.  49.  Chester,  7  Ves.  jun.  378. 

(7)  As  to  the  subsequent  case  of  Hark-  (s)  Harwood  v.  Goodright,  Cowp.  90 

ncss  v.  Bailey,  Prec.  in  Ch.  514.  it  is  (/)  Clarke  v.   Berkeley,  1   Eq.  Ca. 

inaccurate;  and  see  Baxter  v.  Dyer,  5  Abr.  412.   S.  C.  2  Vern.  720. 
Ves.  jun.  656.  and  Peach  v.  Phillips, 

•        —^ • 

(1)  Per  M'Kcan,  C.  J.  2  Dall.  Rep.  289 


21  OF    WILLS    AND    CODICILS.  [BOOK  I. 

gage  the  lands  to  C.  for  a  term  of  years  or  in  fee,  the  devise  of 
the  fee,  subject  to  the  lease  (t)  or  mortgage  (ic),  either  of  which  is 
merely  the  introduction  of  an  incumbrance,  shall  continue  good. 
If  the  owner  of  an  unqualified  equitable  fee  devise  it  by  his  will, 
and  afterwards  the  unqualified  legal  fee  be  conveyed  to  him,  the 
will  is  not  thereby  revoked,  because  such  conveyance  was  incident 
to  the  equitable  fee  devised.  But  If  he  afterwards  take  a  qualified 
conveyance  of  the  legal  fee,  for  the  purpose  of  preventing  dower, 
it  is  a  revocation  of  the  will,  being  a  change  in  the  quality  of  the 
estate,  and  not  incident  to  the  equitable  fee  (v). 

A  surrender  made  by  a  testator  of  copyholds  to  the  uses  of  his 
marriage  settlement,  is  not  a  total  revocation  of  a  surrender  made 
to  the  use  of  his  will,  and  a  devise  of  such  copyholds,  by  the  de- 
visee, takes  the  copyhold  subject  to  the  charge  created  by  the  mar- 
riage settlement  (to). 

Where  a  testator  devised  real  and  personal  estate  to  certain  uses, 
and  afterwards  by  deed  conveyed  it  to  the  same  uses  until  marriage, 
and  then  to  new  uses,  providing  for  his  intended  wife  and  the  issue 
of  the  marriage,  and  after  the  deed,  and  before  marriage,  by  codi- 
cil duly  attested,  and  directed  to  be  annexed  to  his  will,  he  impos- 
ed a  forfeiture  in  case  of  his  wife  being  disturbed,  and  after  the 
codicil  married  :  it  was  held  that  the  settlement  revoked  the  will, 
and  that  the  will  was  republished  by  the  codicil;  that  the  new  uses 
springing  on  the  marriage  did  not  revoke  the  codicil,  nor  did  the 
marriage,  and  birth  of  children,  as  being  contemplated  by  the 
will  (x). 

I  have  already  stated  that  this  apecies  of  revocation  may  operate 
even  in  opposition  to  the  devisor's  intention  (y).  Hence,  if  A., 
after  making  his  will,  suffer  recovery,  levy  a  fine,  or  convey  his 
estate  by  lease  or  release,  the  devise  will  be  revoked,  although  the 
use  result,  or  be  limited  to  A.  himself  (z).  So,  if  A.  devise  lands, 
[22]  and  afterwards  make  a  feoffment  to  the  use  of  his  will  (a),  or 
if  A.  covenant  to  levy  a  fine  to  the  use  of  such  person  as  he  shall 
name  .by  his  will,  then  makes  his  will  and  devises  his  land,  and  af- 
terwards levies  a  fine  in  performance  of  his  covenant  (b):  or  if  A., 
seised  in  fee,  devise  an  estate  in-  fee  to  B.,  and  by  a  conveyance 
takes  back  an  estate  from  B.  in  fee  (c) ;  or,  if  A.  seised  in  fee, 
thinking  he  has  only  an  estate  tail,  suffer  a  recovery  in  order  to 

(t)  Coke  v.  Bullock,   Cro.  Jac.  49.  Ambl.  618.     Darley  v.  Darley,  ib.  653. 

Roll.  Abr.  616.   •       g  and  Dick.  Rep.  397.  S.  C 

(u)  Harkness  v.  Bailey,  Free,  in  Ch.  \z)  Parsons  v.  Freeman,  3  Atk.  741. 

515.     Tucker  v.  Thurston,  17  Ves.  134.  Darley  v.  Darley,  Ambl.  653.     Parker 

(jo)  Ward  v.  Moore,  4  Mad.  Rep.  368.  v.  Biscoe,  3  Moore,  24. 

\w)  Vawser  v.  Jeffery,  3  Barn.&  Aid.  (a)  Sparrow  v.  Hardcastle,    3  Atk. 

462.  and  2  Swans.  Rep.  268.  804.     Swift  v.  Roberts,  Ambl.  618. 

(x)  Jackson  v.   Hurlock,    2   Eden's  (b)  Swift  v.  Roberts,  Ambl.  610. # 

Rep.  263.  (f)  Parsons  v.  Freeman,  3  Atk.  71-2. 

(y)  Banks  v.  Sutton,  2  P.  Wms.  718.  Bridges  v.  Duchess  of  Chandos,  2  Vc> 

Sparrow    v.  Hardcastle,    3   Atk.    803.  jun.  431. 
1   Roll.  Abr.  614.     Swift   v.    Roberts, 


CHAP.  I.]  OF    WILLS    AND    CODICILS.  22 

confirm  his  will  (c),  all  these  cases  amount  to  a  revocation.  So,  if 
A.  be  disseised,  after  making  his  will,  and  die  before  re-entry,  the 
disseisin  will  have  the  same  effect  (d). 

These  are  the  necessary  consequences  flowing  from  the  nature 
of  a  devise  of  lands  as  before  defined.  It  is  not  an  institution  of 
an  heir  :  It  is  in  the  nature  of  a  conveyance  :  It  is  an  appointment 
of  the  specific  estate,  to  be  completed  by  a  subsequent  event,  name- 
ly, the  death  of  the  devisor.  The  devisor  must,  therefore,  continue 
to  have  it  unaltered,  and  without  any  new  modification,  to  the  time 
of  his  death,  when  the  devise  is  to  take  effect.  If,  therefore,  any 
new  disposition  be  made  subsequently  to  the  will,  or,  in  other 
words,  any  new  conveyance  of  that  which  had  been  conveyed  by 
the  will,  it  shall  defeat  the  will.  It  implies  an  alteration,  and  the 
rule,  that  the  estate  must  pass  by  the  first  complete  conveyance, 
becomes  applicable  (e).(l) 

[23]  On  the  same  principle,  where  A.,  seised  of  a  lease  for  lives, 
devisfs  it,  and  afterwards  renews,  the  renewal  of  the  lease  is  a 
revocation  of  the  will  as  to  this  particular;  for  by  the  surrender  of 
the  former  lease,  the  testator  puts  it  out  of  him,  divests  himself  of 
the  whole  interest,  and  it  is  gone,  so  that  there  be  nothing  left  for 
the  devise  to  work  upon,  the  will  must  fail  (f).  And  the  law  is 
the  same  in  regard  to  chattel  leases,  if  specially  bequeathed  (g)  ; 
but  not  otherwise  (h). 

So,  if  A.  specifically  bequeath  to  B.  a  gold  cup,  under  a  parti- 
cular description,  and  afterwards  sell  or  give  it  away,  and  then  buy 
another  gold  cup,  such  newly  purchased  cup  shall  not  pass  to  B. 
by  the  will,  inasmuch  as  the  identical  subject  is  gone  (a*).  (2) 

If  the  subsequent  conveyance  be  procured  by  fraud,  it  shall  have 
no  effect  (k).  (3) 

Such  are  the  principles  of  law  in  regard  to  revocations..  Equity 
also  proceeds  on  the  same  principles;  and,  following  the  law,  ad- 
mits no  revocation  that  would  not  be  a  revocation  on  legal  grounds, 

• 

(c)  Sparrow    v.   Hardcastle,    3  Atk.  Lidiarcl,  3  Atk.  199.     Iludstone  v.  An- 

803.     See  also  Darley  v.  Darley,  Ambl.  derson,  9  Ves.  418.     Attorney-General 

653.  and  Dick.  Rep.  397.  S.  C.  v.  Downing-,  Ambl.  571.     Hone  v.  Med- 

(rf)  1  Roll.  Abr.  616.     Attorney-Ge-  craft,  1  Bro.  C.  C.  261.     Coppin  v.  Fer- 

neral  v.  Vigor,  8  Ves.  jun.  282.     "  nyhough,  2  Bro.  C.  C.  291.     See  1  P 

(e)  Swift   v.   Roberts,    Ambl.    618.  Wms.  597. 

Bridges  v.  Ducbess  of  Chandos,  2  Ves.  (A)  Bowers  v.  Littlewood,  1  P.  Wms. 

jun.  426.    Sparrow  v.  Hardcastle,  3  Atk.  595. 

803.    Harwoodv.  Goodright,  Cowp.90.  (0  Off.  Ex.  23.    Vid.  Abney  v.  Mil- 

Hogan  v.  Jackson,  ib.  305.  ler,  2  Atk.  599. 

(/)  Marwood  v.  Turner,  3  P.  Wms.  '      (k)  Clymer  v.  Littler,  3  Burr.  1244. 

170,  171.  Hawes  v.  Wyatt,  3  Bro.  C.  C.  156.   S.  Q. 

(g)   Abney   v.  Miller,    2  Atk.  527.  2  Cox.  Rep.  263. 
Carte  v.  Carte,  3  Atk.  174.     Stirling  v. 

(1)  Minuse  v.  Cox,  5  Johns.  Cha.  Rep.  450.  Walton  v.  Walton,  7  Johns.  Cha. 
Rep.  267. 

(2)  Walton  x.  Walton,  7  Johns.  Cha.  Rep.  264. 

(3)  Smithwick  v.  Jordan,  15  Muss.  Rep.  113. 


23  OF    WI#LS    AND    CODICILS.  [BOOK  I. 

Therefore  if  A.,  having  an  equitable  estate,  make  his  will,  and 
then  execute  a  conveyance,  and  dispose  of  it,  or  declare  the  uses 
[24]  to  himself,  that  will  be  a  revocation,  in  case  it  would  so  ope- 
rate at  law  on  a  legal  estate  (/).  (1) 

But  still  this  revocation  is  bounded  by  the  rule  of  law  ;  and 
therefore,  if  the  conveyance  be  of  part  only,  and  for  a  partial  pur- 
pose, it  shall  be  a  revocation  only  pro  tanto  (m).  (2)  ' 

In  cases  of  mortgage,  if,  as  I  have  already  stated,  A.  devise  to 
B.  in  fee,  and  afterwards  mortgage  to  C.  for  a  term  of  years,  that 
at  law  is  no  revocation  of  the  fee.  If  it  be  a  mortgage  in  fee,  a 
court  of  law  has  no  concern  with  the  disposition  of  the  equity  of 
redemption.  It  takes  no  notice  of  such  an  interest,  but  consider- 
ing the  land  only  as  a  pledge  for  a  debt,  which  is  the  personal  es- 
tate of  the  mortgagee,  of  necessity  holds,  that  the  land  to  all  other 
purposes  remains  unaltered  in  the  mortgagor.  It  merely  decrees 
the  redemption  to  that  person,  who  would  have  been  entitled  if 
the  mortgage  had  never  existed,  that  is,  the  devisee.  Being  dis- 
charged, it  is  as  if  it  had  never  existed.  As,  in  cases  at  law,  if 
the  mortgage  be  for  a  term  of  years,  it  is  no  revocation,  it  would 
be  incongruous  that  it  should  be  so  in  equity  in  the  case  of  a  mort- 
gage in  fee,  where  the  act  done  gives  as  at  law  nothing  more  than 
a  pledge  for  a  debt  to  the  mortgagee,  which  is  personal  estate,  and 
would  devolve  upon  his  executors  (n).  So,  in  the  case  of  a  con- 
veyance for  payment  of  debts,  the  surplus  resulting  or  being  ex- 
[25]  pressly  reserved  to  the  party  making  it,  and-  his  heirs,  it  is 
precisely  the  same  case  as  that  of  a  mortgage.  There  is  no  distinc- 
tion between  a  general  charge  for  debts,  and  a  charge  for  a  particu- 
lar debt.  The  alteration  of  the  estate  in  substance  extends  no  fur- 
ther than  to  let  in  the  particular  purpose  ;  and  whether  definite  for 
a  particular  debt,  or  indefinite  for  all  debts,  makes  no  difference  (o). 
Therefore  these  cases  have  been  determined  in  strict  analogy  to 
the  law. 

In  like  manner,  if  A.  have  an  equitable  interest  in  fee  in  an  es- 
tate, and  afterwards  take  a  conveyance  of  the  legal  estate  to  the 
same  uses;  as,  where  A-  enters  into  articles  of  agreement  with  B. 
to  buy  lands  of  him,  and  afterwards  devises  those  lands,  and  then 
B.  conveys  the  same  pursuant  to  the  articles,  this  is  no  revocation 
in  equity  ;  for  the  equitable  right  which  A.  has  to  the  lands  to  be 
purchased  shall  pass  by  the  will,  and  his  heir  at  law  be  a  trustee 
for  the  devisee  (p). 

,  (/)  Brydges  v.  Duchess  of  Chandos,  '  (o)  Brydges  v.  Duchess  of  Chandos, 
2  Ves.  jun.  428.  Rawlins  v.  Burgis,  2  2  Ves.  jun.  428.  See  also  Williams  v. 
Yes.  &.  Bea.  381.  Owen,  ibid.  595.  and  Cave  v.  Holford, 

(m)  Brydges  v.  Duchess  of  Chandos,     ibid.  603.  in  note,  and  3  Ves.  jun.  650. 
2  Ves.  jun.  428.  (p)  Marwood  v.  Turner,  3  P.  Wins. 

(?i)  2  Ves.  jun.  428.     Ambl.  31.  169,  Greenhill  v.Greenhill,2Vern.  679. 


(1)  Wulton  v.  Walton,  7  Johns.  Cha.  Rep.  270. 

(2)  Livingston  v.  Livingston,  3  Johns.  Cha.  Rep.  148.     Hughes  v.  Hughes,  2 
Munf.  209.     Matter  of  Nan  Mkkk,  14  Johns.  Rep.  324. 


CHAP.   I.]  OF    WILLS    AND    CODICILS.  25 

In  the  case  of  a  recovery  after  a  will,  though  in  terms  shewing 
clearly  no  intention  to  revoke,  a  recovery  suffered  after  a  will  is 
as  much  a  revocation  in  a  court  of  equity,  as  it  is  in  a  court  of  law 
(q).  So,  if  A.,  after  making  his  will,  covenant  for  a  valuable  con- 
sideration to  convey  the  devised  estate  to  B. ;  although  A.  die  be- 
[26]  fore  the  contract  is  executed,  yet  the  covenant  shall  revoke 
the  will,  on  the  equitable  principle,  that  what  ought  to  be  done  is 
supposed  to  be  done:  therefore,  as  at  law,  if  the  covenant  had  been 
performed  in  the  testator's  lifetime,  it  would  have  amounted  to  a 
revocation,  the  covenant  by  analogy  shall  have  the  same  effect  in 
equity  (r);  (1)  or  rather  it  constitutes  the  devisee  a  trustee  to  per- 
form the  contract  for  the  benefit  of  the  executor. 

In  regard  to  the  republication  of  wills,  since  the  statute  no  de- 
vise of  lands  can  be  republished,  unless  it  be  re-executed  by  the 
devisor  with  the  same  solemnities  with  which  it  was  executed  at 
first;  or  by  a  codicil  executed  in  the  same  manner,  in  terms  ratify- 
ing, confirming,  or  republishing  the  will  (s),  or  expressive  without 
being  restricted  to  any  precise  form  of  words  (/),  of  his  intention 
that  the  will  should  be  considered  as  bearing  the  same  date  with 
the  codicil  (n).  A  codicil  so  executed,  although  it  relate  merely 
to  personal  estate,  yet,  if  it  contain  a  general  clause  of  confirma- 
tion of  the  will,  or  sufficiently  indicate  an  intention  that  the  will 
shall  be  deemed  of  the  same  date  with  the  codicil,  shall  have  the 
same  effect  (v).  (2)  In  case  the  will  be  republished  by  a  codicil, 
the  will  and  codicil  are  considered  in  point  of  law  as  constituting 
[27]  but  one  instrument  (iv).  Therefore,  in  all  these  instances,  lands 
purchased  after  the  date  of  the  will,  and  before  its  re-execution,  or 
before  the  date  of  the  codicil,  or  lands  contracted  for  before  the 
date  of  the  will,  but  conveyed  between  the  date  of  the  will  and 
codicil  (.r),  shall  pass  under  the  will,  if  the  terms  of  the  will  be 
sufficiently  comprehensive  to  include  them.  For,  when  a  will  is 
republished,  the  effect  is,  that  the  terms  and  words  of  the  will  shall 
be  construed  to  speak  with  regard  to  the  property  the  testator  is 
seised  of  at  the  date  of  the  republication,  just  the  same  as  if  he 

(q)    Darlcy    v.    Darley,    3  Wils.    6.  •     (t)  Potter  v.  Potter,  1  Yes.  442. 

Rrydg-es  v.  Duchess  of'Chandos,  2  Yes.  (u)  Barnes  v.  Crowe,  1  Ves.  jun,  486. 

jun.  430.  4  Bro.  C.  C.  2.  S.  C 

(r)  Cotter  v.  Layer,  2  P.  Wms.  624.  (v)  Gibson  v.  Ld.   Montfort,  1  Ves. 

Rider  v.  Wagx-r,   ib.  329.     Edwards  v.  493. 

Freeman,    ib.  436.      Bennett  v.  Lord  (w)  Atcherley  v.  A^emon,  Com.  Rep. 

Tankerville,  19  Ves.  170.  382.     Barnes  r.  Crowe,  1  Yes.  jun.  496. 

(s)  Atcher.ly  v.  Vernon,  Com.  Rep.  (x)  Goodtitle  v.  Meredith,  2  Maul.  &. 

381.     Gibson  v.  Lord  Montfort,   1  Ves.  Sel.  5.  Hulme  v.  Heyerate,  1  Men.  Rep. 

492.  285. 


(1)  An  agreement  to  sell  land,  made  subsequent  to  the  execution  of  his  will, 
in  pursuance  of  which  articles  were  prepared,  and  bonds  for  the  payment  of  the 
purchase  money  taken  by  the  testator,  was  held  not  to  be  a  revocation  of  the 
will  at  km.     Mallei  ax.  v.  Bray,  Coxe's  N.  J.  Rep.  212. 

(2)  Diudap  v.  thinlap',  4  Desaus.  Rep.  321. 

4 


27  OF    WILLS    AND    CODICILS.  [BOOK  I. 

had  such  additional  property  at  the  time  of  making  his  will.  Hence, 
if  A.  devise  lands  by  the  name  of  B.,  C,  and  D.,  and  purchase 
new  lands,  and  republish  his  will,  the  republication  does  not  con- 
cern such  new  lands,  because  the  will  speaks  only  of  the  particu- 
lar lands  B.,  C,  and  D.  (1)  But  if  the  testator  in  his  will  say,  I 
give  all  my  real  estate,  a  republication  will  affect  such  newly  pur- 
chased lands,  because  it  is  then  the  same  as  if  the  testator  had  made 
a  new  will  (y).  So,  where  a  testator  charged  all  his  estates  with 
payment  of  debts,  and  made  his  son  residuary  legatee,  and  after- 
wards purchased  copyholds,  which  were  duly  surrendered  to  the 
use  of  his  will,  and  by  codicil  devised  those  copyholds  to  his  son 
in  fee,  the  codicil  was  held  a  republication  of  the  will,  so  as  to  sub- 
ject the  copyholds  to  the  payment  of  debts  (z).  Nor  is  an  actual 
annexation  of  the  codicil  to  the  will,  essential  to  its  republication 
(a).  Whether  a  mere  annexation  to  the  will  of  the  codicil  so  ex- 
ecuted, but  silent  in  respect  to  any  intention  of  republishing  the 
will,  shall  have  such  operation,  is  a  point  on  which  different  opini- 
ons have  prevailed.  Lord  Camden  C.  thought  that  annexation 
would  of  itself  demonstrate  that  intention  (6);  but  by  other  autho- 
rities it  has  been  held  that  annexation  alone  would  not  be  thus  ef- 
fectual (c). 

[28]  If  a  will  of  lands  be  not  executed  pursuant  to  the  statute, 
although  a  codicil  reciting  the  will  be  (d)  thus  executed,  yet  it 
has  been  held  that  the  codicil  shall  not  effectuate  the  will. 

An  infant,  we  have  seen,  is  by  the  stat.  34  &  35  Hen.  8.  c.  5. 
disabled  from  devising  land;  but  if,  after  attaining  the  age  of 
twenty-one  years,  he  re-execute,  pursuant  to  the  statute,  a  will  of 
lands  made  by  him  before,  it  shall  be  effectual  (e). 

A  will  of  personal  estate  may  be  expressly  republished  by  a  co- 
dicil, or  other  writing,  authenticated  in  the  same  manner  as  a'  will 
of  such  property;  or  by  a  codicil,  or  such  other  writing,  from  the 
contents  of  which  such  an  intention  may  be  fairly  inferred;  or 
merely  by  annexing  a  codicil,  or  other  writing  to  such  will  (f), 
whether  it  expressly  refer  to  the  will  or  not;  or  such  will  may  be 
revived  by  the  mere  parol  declarations  of  the  testator  (,§•).  (2) 

(y)*Heylyn  v.  Heylyn,   Cowp.  132.  v.  Crowe,  1  Ves.  jun.  497.  S.  C.  4  Bro. 

Rolls.  Abr.  618.  Beckford  v.  Parnecott^  C.  C.  9.     Vid.  also  Coppin  v.  Ferny- 

Cro.  Eliz.  493.   Countess  of  Strathmore  hough,  2  Bro.  C.  C.  296. 
v.  Bowes,  7  Term  Rep.  482.  (d)  Attorney-General  v. Baines,  Prec. 

(z)  Rowley  v.  Eyton,  2  Meri.  Rep.  128.  Ch.  270. 

(a)  Potter  v.  Potter,  1  Ves.  442.  (e)  Herbert  v.  Torball,  1  Sid.  162. 

(b)  Attorney-General  v.  Downing1,  (/)  Coppin  v.  Fernyhough,  2  Bro. 
Ambl.  571.  C-  C.  291. 

(c)  Sympson  v.  Hornsby,  Prec.  Ch.  (g)  Off.  Ex.  25.  Beckford  v.  Parne- 
439.  Hutton  v.  Sympson,  2  Vern.  722.  cott,  Cro.  Ehz.  493.  and  Vid.  Abney  v. 
Gibson  v.  Montfort,  1  Yes.  493.  Barnes  Miller,  2  Atk.  599. 


(1)  Kendall's  Ex.  v  Kendal!,  5  Munf.  Rep.  272. 

(2)  In  Pennsylvania  a  will  of  lands  maybe  republibhed  by  parol,     Havnrd  v 
Duvis,  3  Binn.  406. 


CHAP.  I.]  OF    WILLS    AND    CODICILS.  28 

• 

In  a  case  where  copyhold  and  personal  estates  were  given  by 
will,  and  so  much  of  the  will  was  revoked  by  an  interlineation, 
and  a  codicil  to  the  same  effect,  and  the  codicil  was  afterwards 
cancelled;  it  was  held  that  the  cancelling  the  codicil  was  effectual 
to  set  up  the  original  will,  notwithstanding  the  interlineation  was 
left  in  the  will,  upon  the  evidence  of  intention  (h). 

The  statutes  of  the  32d  &  34th  of  Hen.  8.  give  the  power  of  de- 
vising to  all  having  estates  in  fee-simple,  except  in  joint-tenan- 
cy (i),  (1)  over  the  whole  of  their  socage  lands.  Persons  seised 
[29]  in  fee-simple  in  coparcenary,  or  in  common,  in  reversion,  or 
remainder,  are  expressly  comprised  by  the  last-mentioned  sta- 
tute (Ar). 

Copyhold  lands  are  not  within  these  statutes,  since  they  require 
that  the  tenure  should  be  socage,  which  copyholds  are  not(/);  but 
they  are  devisable  by  an  application  of  the  doctrine  of  uses  as  above 
stated  (m). 

(h)  Utterson  v.  Utterson,  3  Ves.  8c         (k)  Sect.  4.  and  7. 
Bea.  122.  (I)  Harg.  Co.  Lit.  Ill  b.  note  1. 

(i)  Swift  v.  Roberts,  Ambl.  617.  (m)  Supr.  6. 

(1)  In  Pennsylvania,  by  the  act  of  31st  March  1812,  "  if  partition  be  not  made 
between  joint  tenants,  whether  they  be  such  as  might  have  been  compelled  to 
make  partition  or  not,  or  of  whatever  kind  the  estate  or  thing-  holden  or  possessed 
be,  the  parts  of  those  who  die  first  shall  not  accrue  to  the  survivors,  but  shall  de- 
scend or  pass  by  devise,  and  shall  be  subject  to  debts,  charges,  curtesy,  or  dow- 
er, or  transmissible  to  executors  or  administrators,  and  be  considered  to  every 
other  intent  and  purpose  in  the  same  manner  as  if  .such  deceased  joint  tenants 
had  been  tenants  in  common.  Provided  always,  that  nothing  in  this  act  shall  be 
taken  to  affect  any  trust  estate."  (Purd.  Dig.  388.  5  Sm.  Laws,  395.) 


[    so    ] 


CHAP.  II. 

OF    THE    APPOINTMENT    OF    EXECUTORS. 


Sect.   I. 
Who  may  be  an  executor — who  not — how  he  may  be  appointed. 

An  executor  is  he,  to  whom  the  execution  of  a  last  will  and 
testament  of  personal  estate  is  by  the  testator's  appointment  con- 
fided (a). 

In  general,  all  persons  are  capable  of  sustaining  this  character  ; 
but  there  are  some  exceptions,  which  I  shall  presently  mention. 

The  king,  it  seems,  may  be  appointed  an  executor,  but  in  that 
case,  as  he  is  presumed  to  be  so  engaged  in  public  affairs  as  to  have 
no  leisure  to  attend  to  the  private  concerns  of  individuals,  he  has 
a  right  to  nominate  persons  to  execute  the  trust  for  him,  as  well  as 
auditors  to  whom  such  nominees  shall  account  (b). 

It  was  formerly  a  doubt,  whether  corporations  aggregate  could 
[31]  be  constituted  executors,  inasmuch  as  they  cannot  take  an 
oath  for  the  due  execution  of  the  office  (c);  but  it  now  seems  set- 
tled in  the  affirmative  (of),  and  that,  on  their  being  so  named,  they 
may  appoint  persons,  styled  syndics,  to  receive  administration 
with  the  will  annexed,  who  are  sworn  like  all  other  administra- 
tors (e).  Such  corporations  as  can  take  the  oath  of  an  executor 
are  clearly  competent  (f). 

An  infant  may  be  appointed  an  executor  (§•),  and  even  a  child 
in  venire  sa  mere;  (I)  and  then  if  the  mother  be  delivered  of  two 
or  more  children  at  the  birth,  they  shall  all  be  entitled  (A).  But 
an  infant,  although  appointed,  is  by  stat.  3S  Geo.  3.  c.  87.  s.  6. 
disqualified  from  acting  in  the  executorship  till  he  attains  the  full 
age  of  twenty-one  years,  and  an  administrator  is  substituted  to  act 
for  him  in  the  interval.  Before  the  passing  of  this  act,  the  law 
deemed  him  capable  of  executing  the  trust  at  the  age  of  seven- 
teen (i). 

(a)  Off.  Ex.  2.   2  Bl.  Com.  503.   Far-  (e)  1  Bl.  Com.  28.  n.    2  Bac.  Abr.  5. 

rington  v.  Knightlv,    1   P.  Wms.    548.  (/)  Godolph.  85.     3  Bac.  Abr.  5. 

553.  576.  (g)  Off.    Ex.    214.     3  Bac  Abr.    8. 

•   (£)  3  Bac.  Abr.  5.     11  Vin.  Abr.  54.  2  Bl.  Com.  503. 

4  Inst.  335.  (h)  Godolph.   102.     3  Bac.   Abr.   8. 

(c)  Off.  Ex.  17.     1  Bl.  Com.  477.  {i)  Off   Ex.  214.     11  Vin.  Abr.  99. 

(d)  1  Roll.  Abr.  915.   Swinb.  5.  s,  1.  5  Co.   29. 
3  Bac.  Abr.  5.     11  Vin.  Abr.  140. 

(1)  Per  Duncan  J.   Swift  v.  Dujffield,  5  Serg.  £c  Rawlc,  40. 


CHAP.   II.]  OF    APPOINTING    EXECUTORS.  31 

A  feme  covert  is  also  capable  of  the  office  of  an  executrix,  but 
[32]  not  without  the  consent  and  concurrence  of  her  husband  (/c)  ; 
and  although  she  be  an  infant,  if  her  husband  be  of  age  and  assent, 
lie  shall  have  the  executionof  the  will  (/). 

An  alien  friend  may  be  an  executor  (ra),  and  so  also  may  an 
alien  enemy,  who  came  here  with  a  safe-conduct,  or  is  commorant 
here  by  the  king's  licence,  and  under  his  protection,  although  he 
came  without  a  safe-conduct  (n).  Neither  outlawry  nor  attainder 
incapacitates  a  party,  for  he  acts  in  aider  droit,  and  for  the  bene- 
fit of  the  deceased  (p).  Nor  had  villeinage,  during  its  existence 
in  this  country,  that  effect  (/?). 

Nor  is  poverty,  nor  even  insolvency,  a  disqualification  of  him 
in  whom  the  testator  has  chosen  to  repose  so  great  a  confidence 

M-M  ...  \  .,         r 

A  disability,  however,  may  arise  in  various  modes,  either  from 
the  party's  being  guilty  of  certain  offences  against  the  established 
religion;  or  from  his  being  the  subject  of  an  enemy's  country,  and 
resident  within  it,  or  resident  here  without  the  king's  licence;  or, 
under  certain  circumstances,  from  going  or  residing  abroad;  or 
from  a?  defect  of  understanding. 

[33]  A  person  excommunicated  is  suspended  from  acting  till 
absolution  {r).  By  stat.  3  Jac.  1.  c.  5.  s.  22.  a  popish  recusant, 
convicted  at  the  time  of  the  testator's  death,  is  altogether  incom- 
petent (s). 

By  stat.  3  Car.  1.  c.  2.  s.  1.  if  any  person  send  another  abroad 
to  be  educated  in  the  popish  religion,  or  to  reside  in  any  religious 

(A-)  3  Bac.   Abr.  9.     Off.  Ex.  203.  Salk.  36.  Rex  v.   Raines,  Lord  Raym. 

2  Bl.  Com.  503.   Sed  vide  1  Fonbl.  86.  361.  S.  C.  Salk.  299.   11  Tin.  Abr.  143. 

(/)  Off.  YM .  Il5.  Walker  v.  Woolaston,  2  P.  Wms.  562. 

(m)  Off.  Ex.  15.     3  Bac.  Abr.  6.  3  P.  Wms.  388.  note  b.  Anon.  12  Ves. 

(n)  1  Bac.  Abr.  5.   137.     Co.  Litt.  jun.  4. 

129  b.   Wells  v.  Williams,  Salk.  46.  pi.  (r)  Off.  Ex.  17.  107.    3  Bac.  Abr.  6. 

1.     Ld.  Raym.  282.   S.  C.  Lutw.34.  2  Burn's  Eccl.  Law,  222. 

(0)  Off.  Ex.  16.  3  Bac.  Abr.  5.  Co.  (s)  Hill  v.  Mills,  1  Show.  293.  11 
Litt.  128.  Yin.  Abr.    142.   144.  See  4  Bl.    Com. 

(p)  Swinb.  5.  s.  1.  3  Bac.  Abr.  5.  56.  and  stat.  3  Jac.  1.  c.  5.  s.  10.  andoO 
Roll.  Abr.  915.     11  Vin.  Abr.  141.  Car.  2.  s.  2.  c.  1. 

(<?)  3  Bac.   Abr.   7.     Hill  v.   Mills, 

(1)  Higginson  v  Fabre's  Ex.  3  Desaus.  Rep.  93,  94.  By  the  3d  section  of  the 
Act  of  27th  March  1713,  establishing-  Orphan's  Courts  m Pennsylvania,  "when 
any  complaint  is  made  to  the  said  Justices,  that  an  executrix  having-  minors  of  her 
own,  or  being  concerned  for  others,  is  married,  or  like  to  be  espoused  to  another 
husband,  without  securing  the  minors'  portions  or  estates,  or  that  an  executor  or 
other  person  having  the  care  and  trust  of  minors'  estates,  is  like  to  prove  insol- 
vent, or  shall  refuse  or  neg-lect  to  exhibit  perfect  inventories,  or  give  full  and 
just  accounts  of  the  said  estates  come  to  their  hands  or  knowledge,  then  and  in 
every  such  case  the  same  Justices  are  hereby  required  forthwith  to  call  an  Or- 
phan's Court,  who  shall  cause  all  and  every  such  executors  and  trustees,  as  also 
such  guardians,  &c.  to  give,  security  to  the  orphans  or  minors,  by  mortgage  or 
bonds,  in  such  sums,  and  with  such  sureties,  as  the  said  Courts  shah  think  reason 
able,"  &c.  (Purd.  Dig.  611.     1  Dall.  Laws,  98.     1  Sm,  Laws,  81.) 


33  OF    APPOINTING    EXECUTORS.  [BOOK  I. 

house  abroad  for  that  purpose,  or  contribute  to  his  maintenance 
when  there,  both  the  sender,  the  sent,  and  the  contributer,  are 
subject  to  the  same  disability.  But  by  virtue  of  the  stat.  31  Geo. 
3.  c.  32.  Roman  Catholics  who  shall  make,  take,  and  subscribe 
the  declaration  of  their  religious  profession,  and  the  oath  of  alle- 
giance and  abjuration  as  appointed  by  that  act,  shall  be  exempt 
from  this  as  well  as  other  disabilities. 

By  stat.  9  &  10  W.  3.  c.  32.  persons  denying  the  Trinity,  or 
asserting  that  there  are  more  Gods  than  one,  or  denying  the  Chris- 
tian religion  to  be  true,  or  the  Holy  Scriptures,  to  be  of  divine  au- 
thority, shall  for  the  second  offence,  among  other  incapacities,  be 
disabled  from  being  executors. 

Also  by  the  statutes  prescribing  the  qualifications  for  offices  (/), 
[34]  persons  not  having  taken  the  oaths  and  complied  with  the 
other  requisites  for  qualifying,  who  shall  execute  their  respective 
offices  after  the  time  limited  for  the  performance  of  those  acts,  shall 
incur  the  same  incapacity. 

Alienage  with  relation  to  a  hostile  country,  accompanied  with 
residence  abroad,  or  residence  here  without  the  king's  permission, 
cither  express  or'implied,  is  to  be  classed  as  a  species  of  disability; 
for  although  the  cases  in  respect  to  the  incapacity  of  alien  enemies 
are  not  entirely  uniform  (m),  yet  this  principle  of  exclusion,  thus 
modified,  seems  clearly  to  exist  (v). 

By  stat.  5  Geo.  1.  c.  27.,  British  artificers  going  out  of  the 
realm  to  exercise  or  teach  their  trades  abroad,  or  exercising  their 
trades  in  foreign  parts,  who  shall  not  return  within  six  months 
next  after  due  warning  given  them,  shall  be  deemed  aliens  out  of 
his  majesty's  protection,  and  are  expressly  disqualified  for  execu- 
tors. 9   . 

Idiots,  and  those  who  are  visited  with  insanity,  or  whose  intel- 
lects are  destroyed  by  age,  disease,  or  intemperance  ;  such  persons 
as,  having  been  born  blind  and  deaf,  have  always  wanted  the 
common  inlets  of  knowlege,  are  all  necessarily  incapable  of  the 
office  (w). 

[35]  The  authority  of  an  executor,  as  appears  by  the  definition, 
is  grounded  on  the  will,  and  may  be  either  express,  or  implied  ; 
absolute,  or  qualified;  exclusive,  or  in  common. with  others. 

He  may  be  expressly  nominated,  either  by  a  written,  or  by  a 
nuncupative  will  (x). 

He  may  be  constructively  appointed  merely  by  the  testator's 

(t)  Stat.  25  Car.  2.  c.  2.     1  Geo.  1.  c.  2.  s.  10.     Off.  Ex.  15.     Anon.  Cro. 

stat.  2.  c.  13.     Vide  also  13  W.  3.  c.  Eliz.  142. 

6.  s.  6.  (v)  Wells  v.  Williams,  Lord  Rayiri. 

(u)  3  Bac  Abr.  6.     1  Bac.  Abr.  5.  282.  Openheimer  v.  Levy,  Stra.  1082. 

Brocks    v.    Phillips,  Cro.    Eliz.    684.  Brandon  v.  Nesbett,  6  Term  Rep.   23. 

Watford  v.  Masham,  Moore  431.   Rich-  Bristow  v.   Towers,  ib.  35. 

field  v.  Udall,  Carter  49.  191.    Villa  v.  (w)  3  Bac.  Abr.  7. 

Dimock,  Skinner,  370.  Mollay,  lib.  3.  (x)  Off.  Ex.  7.    3  Bac.  Abr.  28.    11 

Vin.  Abr.    136. 


CHAP.  II.]  OF    APPOINTING    EXECUTORS.  35 

recommending  or  committing  to  him  the  charge  of  those  duties, 
which  it  is  the  province  of  an  executor  to  perform,  or  by  confer- 
ring on  him  those  rights  which  properly  belong  to  the  office,  or  by 
any  other  means  from  which  the  testator's  intention  to  invest  him 
with  that  character  may  be  distinctly  inferred.  As  if  a  will  di- 
rect that  A.  shall  have  the  testator's  personal  property  after  his 
death,  and,  after  paying  his  debts,  shall  dispose  of  it  at  his  own 
pleasure  ;  or  declare  that  A.  shall  have  the  administration  of  the 
testator's  goods;  this  alone  constitutes  A.  an  executor  according  to 
the  tenor.  So,  where  the  testator,  after  giving  various  legacies, 
appointed  that,  his  debts  and  legacies  being  paid,  his  wife  should 
have  the  residue  of  his  goods,  on  condition  that  she  gave  security 
for  the  performance  of  his  will  ;  this  was  held  to  be  sufficient  to 
make  her  executrix.  And  so  where  an  infant  was  nominated  ex- 
ecutor, and  A.  and  B.  overseers,  with  this  direction,  that  they 
should  have  the  controul  and  disposition  of  the  testator's  effects, 
[36]  and  should  pay  and  receive  debts  till  the  infant  came  of  age  ; 
they  were  held  to  be  executors  in  the  mean  time  (y). 

His  appointment  may  be  either  absolute  or  qualified.  It  is  ab- 
solute, when  he  is  constituted  certainly,  immediately,  and  without 
any  restriction  in  regard  to  the  testator's  effects,  or  limitation  in 
point  of  time.  It  may  be  qualified,  as  where  A.  is  appointed  to 
be  executor  at  a  given  period  after  the  testator's  death  ;  or  where 
he  is  appointed  executor  on  his  coming  of  age,  or  during  the  ab- 
sence of  J.  S. ;  or  where  A.  and  B.  are  made  executors,  and  B. 
is  restricted  from  acting  during  A.'s  life  ;  or  where  A.  and  B.  are 
named  executors,  and  if  they  will  not  accept  the  office,  then  C. 
and  D.  are  substituted  in  their  room  ;  or  where  A.  is  appointed 
executor  on  condition  that  he  gives  security  to  pay  legacies,  or 
generally  to  perform  the  will.  So  a  testator  may  make  A.  an  ex- 
ecutor in  respect  to  his  plate  and  household  goods,  B.  in  respect 
to  his  cattle,  C.  as  to  his  leases,  and  D.  in  regard  to  his  debts  ;  or 
appoint  A.  an  executor  for  his  effects  in  one  county,  and  B.  ex- 
ecutor for  his  effects  in  another;  or  (which  seems  more  rational  and 
expedient)  he  may  so  divide  the  duty  where  his  property  is  in  va- 
[37]  rious  countries.  So  he  may  nominate  his  wife  executrix  dur- 
ing the  minority  of  his  son,  or  so  long  as  she  continues  a  wi- 
dow (z). 

Lastly,  an  executor  may  be  appointed  solely,  or  in  conjunction 
with  others:  but,  in  the  latter  case.,  they  are  all  considered  by  the 
law  in  the  light  of  an  individual  person  («). 

(y)  2  Bl.  Com.  503.     Off.  Ex.  8,  9.  (z)  Off.    Ex.  10.  12.     3  Bac.  Abr. 

3  Bac.    Abr.   27.     11  Vin.   Abr.   136.  28.  30.    11  Yin.   Abr.   136.   138.   139. 

(iodolph.    83.      Com.     Dig.    Aclminis-  Carte  v.  Carte,  3  Atk.  180.  Cbetham  v. 

't  rat  ion  t.B.)  Cro.  Eliz.  48.  Pickering  v.  Lord  Audley,  4  Ves.  jun.  72. 

Towers,  Ambl.  361.  Swinb.  p.  4.  s.  4.  (a)  3  Bac  Abr,  30.     Off.  Ex.  95. 


?)7  OF  AN  EXF.CUTOU  UK  SON  TOHT.      [BOOK  I. 

Sect.   II. 
Of  an  executor  de  son  tort — how  a  parly  becomes  so. 

Having  thus  treated  of  executors  regularly  constituted,  I  pro- 
ceed now  to  the  consideration  of  another  species  of  them,  who  de- 
rive no  authority  from  the  testator,  hut  who  assume  the  office  by 
their  own  intrusion  and  interference.  Such  an  one  is  styled  an 
executor  de  son  tort,  or  an  executor  of  his  own  wrong  (b). 

Various  are  the  acts  which  constitute  an  executor  of  this  de- 
scription (c),  such  as  his  taking  possession  of,  and  converting  the 
assets  to  his  own  use  (d);  living  in  the  house,  and  carrying  on  the 
trade  of  the  deceased  (e)  ;  paying  the  deceased's  mortgages,  or 
)  38  |  otlnr  debts  (1)  or  legacies  out  of  them;  suing  for,  receiving,  or 
releasing  the  debts  due  to  the  estate  (/)  ;  seizing  a  specific  legacy 
without  the  assent  of  the  lawful  executor  (g);  (2)  entering  on  a 
lease  or  term  for  years  (A),  or  an  estate  pur  autre  vie  (i),  (which 
is  made  assets  by  stat.  2.0  Car.  2.  c.  3.)  especially  if  he  enter 
in  light  of  the  deceased,  and  do  acts  on  the  land,  which  belong  to 
the  office  of  an  executor;  as  turning  the  cattle  upon  it;  delivering 
to  the  widow  more  apparel  than  is  suitable  to  her  rank  (k)  ;  an- 
swering in  the  character  of  an  executor  to  any  action  brought 
tgainst  him,  or  pleading  any  other  plea  than  nc  unques  executor  (/). 
X ii*l  all  other  acts  of  a  similar  nature,  however  slight  (w),  may 
have  the  same  consequence,  as  in  one  case,  merely  taking  a  bible, 
and  in  another  a  bedstead  (n),  were  held  sufficient,  inasmuch  as 
they  are  the  indicia  of  the  person  so  interfering  being  the  repre- 
sentative  of  the  deceased.  So  if  J.  S.  be  appointed  by  the  ordi- 
nary to  collect  the  effects,  and  he  exceed  his  authority,  and  sell 
any  of  them,  even  such  as  are  perishable  (o),  or  if  he  had  the  ex- 
press direction  of  the  ordinary  for  such  sale,  the  same  being  illegal, 
lie  becomes  an  executor  de  son  tort  {])). 

[39]  So  where  A.  the  servant  of  B.  sold  goods  of  C,  an  intes- 
tate, both  before  and  after  C.'s  death,  in  consequence  of  orders 

(/,)  Oil'.  Ex.  172.     3  Bac.   Abr.  20.  (h)  Swinb.  6.  s.  22.  No.  2.     3  Bac. 

Swinb,  ('..  s.  22.  No.  2.     2  Bl.  Com.  507.  Abr.  25. 

11  \  in.  Abr.  210.  (/)  Carth.  166. 

(c)  3  Bac.   Abr.  21.     11    Yin.   Abr.  (/r)  Off.  Ex.  175. 

205.  (/)  3  Bac.  Abr.  21.     Godolph.  92. 

(il)  5  Co.  33  b.     Ofl".  Ex.  172.     11  (m)  Pad&etv.  Priest,  2  Term.  Rep. 

Vin.  Abr.  210,211.  100.     Stokes  v.  Porter,   Dyer,  166  b. 

(*)   Hooper  v.  Summerset,  1   Wight-  11  Yin.  Abr.  212. 

wick,  16.  O)  3  Bac.  Abr.  24.     Noy.  69. 

(/)  Swinb.  6.  s.  22.  No.  2.    Pleice  v.  («)  Off.  Ex.  174. 

Southcot,  Dyer,  105.      Roll.  Abr.  918.  (/;)  OH'.  Ex.  175.   11  Yin.  Abr.  209. 

(g)  3  Bac.  Abr.  21.     Codolph.  91. 


(1)  Howell's  Jlil in.  v.  Smith,   2  M'Cord's  Rep.  516. 

(2)  Or  by  buying  at  sheriff's  sale  roods  of  the  intestate,  sold  under  an  execu- 
tion issued  upon  a  judgment  fraudulently  confessed  to  him  by  tbc  intestate,  with 
the.  \ic\v  to  defeat  creditors.     Osborne  v  Moss,  7  Johns.  Rep.  161. 


CHAP,  H.J        01"  AN  EXECUTOR   1)1".  SON  TO»T.  39 

giyen  by  him  in  his  lifetime,  and  paid  the  money  arising  from  such 
sale  into  the  hands  of  B. ;  and  D.  had  also,  in  the  capacity  of  a  ser- 
vant, sold  other  goods  of  the  intestate;  on  an  action  brought  against 
13.  and  D.  as  executors,  for  a  debt  due  from  the  deceased,  they, 
not  having  discharged  themselves  by  payment  of  the  money,  which 
they  had  respectively  received  to  the  rightful  administrator  at  the 
time  when  the  action  was  commenced,  or  even  when  they  plead- 
ed, were  both  adjudged  liable  as  executors  of  their  own  wrong  (</). 

So  where  a  creditor  took  an  absolute  bill  of  sale  of  the  goods  of 
the  debtor,  but  agreed  to  leave  them  in  his  possession  for  a  limited 
time,  before  the  expiration  of  which  the  debtor  died,  and  the  cre- 
ditor took  and  sold  the  goods;  he  was  held  liable  to  tfte  extent  of 
their  value,  as  executor  de  son  tort,  for  the  debts  of  the  deceased 
(r).  (1). 

So  by  stat.  43  Eliz.  c.  S.,  if  administration  by  fraud  be  grant- 
ed to  an  insolvent  person,  who  gives  any  of  the  effects  to  A.,  or 
releases  a  debt  due  from  him  to  the  intestate,  A.,  for  so  much, 
shall  be  executor  de  son  tort  (.?), 

[40]  But  there  arc  many  acts  which  a  stranger  may  perform 
without  incurring  the  hazard  of  being  involved  in  such  an  execu- 
torship (t);  such  as  locking  up  the  goods;  directing  the  funeral,  in 
a  manner  suitable  to  the  estate  which  is  left,  and  defraying  the  ex 
penses  of  such  funeral  himself,  or  out  of  the  deceased's  effects. (u); 
making  an  inventory  of  his  property  (?;);  advancing  money  to  pay 
his  debts  or  legacies  {i.v);  feeding  his  cattle;  repairing  his  houses  ; 
providing  necessaries  for  his  children  (x)  ;  for  these  are  offices 
merely  of  kindness  and  charity. 

And  although,  as  I  have  stated,  a  party  may  be  executor  de  son 
tort  of  a  term  actually  existing,  and  in  that  case  cannot  enlarge 
his  estate  by  claiming  in  fee,  yet  if  he  enter  generally  on  lands,  of 
which  there  is  no  term  in  being,  he  cannot  qualify  Ids  wrong  by 
expressly  claiming  only  a  particular  estate,  but  must  be  a  disseisor 

(?)  Padgct  v.  Priest  ct  al„  2  Term  No.  2.     2  Ml.  Com.  507.     11  Vin.  Abr. 

Rep.  97.  207.     Harrison  v.  Rowley,  4  Ves.  jun. 

(r)    Edwards    v.    Harben,   2  Term  2 If). 
Rep.  587.  0)  Swinb.  ibid.  . 

(«)  Vin.   OfT.   Ex.   182,  183.  (w)  3  Bac.  Abr.  22.     Godolph.  92. 

(/)  3  Bac  Abr.  22.  Godolph.  93,  94.         \x)  Swinb.  ibid. 

(w)  Off.  Ex.  171.     Swinb.  6.  s.  22. 

(1)  Dorsey  v.  Smitlison,  6  Harr.  8c  Johns.  61.  See,  however.  King  v.  Ly- 
7,ian,  1  Root.  Hep.  104,  where  it  was  held  that  intermeddling  with  the  goods 
of  a  deceased  person,  held  by  a  bill  of  sale  from  the  decedent,  although  i1 
be  fraudulent,  will  not  make  a  man  ah  executor  de  son  tort.  Where  a  person  drew 
an  order  upon  his  agent,  who  was  in  possession  of  property  for  the  purposi  ol 
selling,  upon  which  the  agent  himself  had  a  hen,  and  Hie  order  Was  accepted,  and 
the  drawer  then  died,  the  Court  held,  thai  such  order  was  essentially  an  assign- 
ment for  valuable  consideration,  and  that  the  agent  might  sell  the  property,  re- 
tain his  debt,  and  pay  the  order,  without  making  himself  responsible  as  executor 
de  son  tort.  De  Bessc  v.  Napier  <.l  al.,  Ext  I  M'Cord's  Rep.  107;  by  three 
judges  against  two. 


40  OF  THE  RENUNCIATION  OR  [BOOK  I. 

in  fee,  and  not  an  executor  de  son  tort  (y).{\)  Nor  can  there,  ge- 
nerally speaking,  be  such  an  executor,  when  there  is  a  rightful  ex- 
ecutor, or  where  administration  has  been  duly  granted;  for,  if  af- 
ter probate  of  the  will  or  administration  granted,-  a  stranger  take 
possession  of  the  property,  he  may  be  sued  as  a  trespasser  by  the 
executor  or  administrator;  but  it  is  otherwise  if,  after  taking  such 
[41]  possession,  he  claim  to  be  executor,  pay  or  receive  debts,  or 
pay  legacies,  or  otherwise  intermeddle  in  that  character  (c);  for  in 
all  those  cases  he  becomes  an  executor^of  his  own  wrong. 

Whether  a  man  has  made  himself  such  an  executor,  is  a  ques- 
tion not  to  be  left  to  a  jury,  but  is  a  conclusion  of  law  resulting 
from  the  facte  established  in  evidence  («). 


Sect.  III. 
Of  the  renunciation  or  acceptance  of  an  executorship. 

An  executor  may,  if  he  please,  decline  to  act,  but  he  has  no 
power  to  assign  the  office  {b\  On  his  being  cited  by  the  ordinary, 
pursuant  to  stat.  21  H.  8.  c.  5.,  to  come  in  and  prove  the  will, 
if  he  neglect  to  appear,  he  is  punishable  by  excommunication  for  a 
contempt  (c).  If  he  appear,  either  on  citation,  or  voluntarily,  anct 
pray  time  to  consider  whether  he  will  act  or  not,  the  ordinary  may, 
though  the  practice  seems  now  obsolete,  grant  letters  ad  colligen- 
dum in  the  interim  {d):  If  he  refuse,  he  cannot  be  compelled  to 
[42]  accept  the  executorship,  and  his  renunciation  is  entered  and 
recorded  in  the  spiritual  court  before  the  ordinary.  A  refusal,  by 
any  act  in  pais,  as  a  mere  verbal  .declaration  to  that  effect,  is  not 
sufficient;  but,  to  give  it  validity,  it  must  be  thus  solemnly  entered 
and  recorded,  and  then  administration  with  the  will  annexed  will 
be  granted  to  another  (e). 

If  the  executor  refuse  to  take  the  usual  oath,  or,  being  a  quaker, 
to  make  the  affirmation,  this  amounts  to  a  refusal  of  the  office,  and 
shall  be  so  recorded  (f). 

In  case  the  ordinary  himself  is  nominated  executor,  he  may  re- 
nounce before  the  commissary  (g). 

(>/)  3  Bac.  Ahr.   2.1,  24.     Mayor  of  (c)  Off.  Ex.  37.     Vid.  iilfr. 

Norwich  v.  Jphnson,  3  Lev.  35.     S.  C.  (d)  Broker  v.  Charter,  Cro.  Eliz.92. 

3  Mod.  90.  and  2  Show.  457.  (e)  Oft'.  Ex.  38.     4  Burn.  Eccl.  L. 

(z)  3  Bac.  Abr.  22.  5  Co. 33  b.  Anon.'  198.     Swinb.  6.  s.  12.     Roll.  Abr-  907. 

Salk.  313.  pi.  19:     11  Yin.  Abr.  212.  (/)  4  Burn.   Eccl.  L.  213.     Rex  v. 

.(«)  Padget  v.  Priest,  2  Term.  Rep.  Raines,  Ld.  Ravm. 

99.  (g)  Ibid.  38.* 

17/)  3  feac.  Abr 


(1)  No  intermeddling  with  the  lands  of  the 'deceased  will  charge  a  person  as 

executor  de  son  tort,  it  being  merely  a  wrong  done  to  the  heir  or  devisee.   Mitch- 
7  v.  Lu.nl,  4  Mass.  I{rp.  659.  Nor  can  lands  of  an  intestate  be  sold  underajtidg- 

on    ort,    fflttchely.  Lunt,  Nass  v.    Van* 
Rawle,  192. 


CHAP.  11.]   ACCEPTANCE' OF  AN  EXECUTORSHIP.       42 

If  a  party  renounce  in  person,  be  takes  an  oath  that  he  has  not 
intermeddled  in  the  effects  of  the  deceased,  and  will  not  intermed- 
dle therein  with  any  view  of  defrauding  the  creditors.  But  he 
may  renounce  by  proxy,  and  then  the  oath  is  dispensed  with. 

An  executor  cannot  in  part  refuse;  he  must  refuse  entirely,  or 
not  at  all  (h). 

After  such  refusal,  and  administration  granted,  the  party  "is  in- 
capable of  assuming  the  executorship  (/)  during  the  lifetime  of 
[43]  such  administrator  ;  but,  after  the  death  of  the  administrator, 
the  executor  may  retract  his  renunciation,  however  formally  made; 
but  if  administration  be  committed  in  consequence  merely  of  his 
failure  to  appear  on  the  above-mentioned  process,  he  has  a  right, 
at  any  future  time,  even  in  the  administrator's  lifetime,  to  come  in 
and  prove  the  will  (k). 

If  he  appear,  and  take  the  usual  oath  before  the  surrogate,  he 
has  made  his  election,  and  cannot  afterwards  divest  himself  of  the 
office,  but  may  be  compelled  to  perform  it  (/). 

So,  if  he  once  administer,  he  is  absolutely  bound  (m);  and  by 
stat.  37  Geo.  3.  c.  90.  s.  10.  if  he  administer,  and  omit  to  take 
probate  within  six  months  after  the  death  of  the  deceased,  he  is  li- 
able to  the  penalty  of  fifty  pounds  (n). 

The  acts  which  amount  to  an  administration  are  all  such  as  indi- 
cate an  election  of  the  executorship  (o),  and  within  this  class  all 
such  acts  as  constitute  an  executor  de  son  tort  are  of  course  com- 
prehended (/?).  Hence,  it  hath  been  adjudged,  that  if  he  take  the 
[44]  goods  of  a  stranger,  under  an  idea  that  they  belonged  to  the 
testator,  and  with  an  intent  to  administer  them,  this  act  is  suffi- 
cient to  charge  him;  as,  where  the  testator  was  tenant  at  will  of  cer- 
tain goods,  and  the  executor  seized  them,  supposing  they  were  part 
of  the  deceased's  effects  and  intending  to  administer  them,  this  was 
held  to  be  an  election  of  the  office  (<7).  (1)  But  it  is  otherwise  if 
the  executor  take  the  testator's  goods  on  a  claim  of  property  in  them 
himself,  although"  it  afterwards  appear  that  he  had  no  right,  since 
such  claim  is  expressive  of  a  different  purpose  from  that  of  admin- 
istering as  executor  (r).  So,  if  an  executor  sequester  goods  in  the 
character  of  a  commissary,  that  is  no  assent  to  the  executorship  (s). 

(h)  11  Vin.  Abr.  139.  Anon.  Brownl.  301.  304.  307. 

82.     Fooler  v.  Cooke,  1  Salk.  297.  (n)  Vid.  infr. 

(/)  Swinb.  6."s.  12.    3  Bac.  Abr.  42,  (o)  3  Bac.  Abr.  44,     Boll.  Abr.917. 

43.     Off.  Ex.  39.  1 1  Vin.  Abr.  205. 

(ft)  Off.  Ex.  ibid.  Com.  Dig.  Admon.  (p)  3  Bac.  Abr.  44.    Roll.  Abr.  917. 

(B.  4.)  infr.  Swinb.  p.  6.  si  22. 

(/)  Swinb.  6.  s.  12.     1  Ventr..335.  (?)  Roll.  Abr.  917.  11  Vin.  Abr. 206. 

11  Vin.  Abr.  207.  (>•)  3  Bac.  Abr.  44.     Roll.  Abr.  917. 

(m)  4  Burn's  Eccl.  L.  198.  Swinb.  (s)  Roll.  Abr.917.  11  Vin.  Abr.  206. 
6.  s.  12.    Wankford  v.  Wankford,  Salk. 


(1)  So  taking  possession  and  selling  part  of  the  personal  estate  of  the  testator, 
and  paying  some  of  his  debts,  are  proof  of  election  to  act  as  executor,  and  ren- 
ier  a  person  chargeable  as  such.     Van  Home  v.  Fonda,  5  Johns.  Cha.  Rej 


ooc 


44  OF  EXECUTOR  BEFORE  PROBATE.     [BOOK  I. 

But  if  there  be  two  executors,  and  one  of  them  have  a  specific 
legacy  bequeathed  to  him,  and  take  possession  of  it  without  the 
consent  of  his  co-executor,  such  act  amounts  to  an  administration 
(/).  So,  if  an  executor  have  refused  before  the  ordinary,  and  ad- 
ministration hath  been  granted,  if  it  appear  he  had  administered 
before,  and  thus  determined  his  election,  the  letters  of  administra- 
tion may  be  revoked,  and  he  may  be  enforced  to  prove  (u). 

If  there  be  several  executors,  they  must  all  duly  renounce,  be- 
fore the  administration  with  the  will  annexed  can  be  granted  (v). 

[45]  If  some  of  them  renounce  before  the  ordinary,  and  the 
rest  prove  the  will,  the  renunciation  is  not  peremptory;  such  as 
refused  may,  at  any  subsequent  time,  come  in  and  administer,  and 
although  they  never  acted  during  the  lives,  they  may  assume  the 
execution  of  the  will  after  death,  of  their  co-executors,  and  shall 
be  preferred  before  any  executor  appointed  by  them  (to).  And  if 
administration  be  committed  before  a  refusal  by  the  surviving  exe- 
cutor, such  administration  will  be  void  (x). 

If  an  executor  of  an  executor  intermeddle  in  the  administration 
of  the  effects  of  the  first  testator,  he  cannot  refuse  the  administra- 
tion of  the  effects  of  the  latter  ;  but  he  may  take  upon  himself  the 
latter,  and  refuse  the  former  ($). 


Sect.  IV. 

Of  an  executor  before  probate  of  the  mill. 

As  a  consequence  of  the  principle  that  an  executor  derives  all 
[4G]  his  title  from  the  will,  his  interest  is  completely  vested  at  the 
instant  of  the  testator's  death  ;  and  therefore  before  probate,  that 
is,  before  the  will  is  authenticated  in  the  spiritual  court,  and  a  copy 
of  it  delivered  to  him,  certified  under  the  seal  of  the  ordinary,  he 
may  lawfully  perform  almost  every  act  which  is  incident  to  the 
office  (r).  Not  to  mention  the  funeral,  he  may  make  an  inventory, 
and  possess  himself  of  the  testator's  effects  (a):  he  may  enter  peace- 
ably into  the  house  of  the  heir,  and  take  specialties,  and  other  se- 
curities for  the  debts  due  to  the  deceased  (Z>),  or  remove  his  goods 
(c):  he  may  pay  or  take  releases  of  debts  owing  from  the  estate  : 
he  may  receive  or  release  debts  which  are  owing  to  it  (d):  ho  may 

(/)  Roll.  Ahr.917.  11  Vin.  Abr.  206.  (y)  Shep.  Touchst.  464. 

(u)  Off.  Ex.  40.  (z)  Com.  Dig1.  Admon.  B.  9.  Flowd, 

(v)  Roll.  Abr.  907.  Com.   280.     Smith  v.  Milles,   1  Term 

(to)  5  Co.  28.    9  Co.  36  b.     Anon.  Rep.  480.     3  Bac.  Abr.  52.     Off  Ex 

Dyer,   160.     House    v.  Lord  Fetre,  2  34.     11  Vin.  Abr.  202.     Wankibrd  v 

Salk.    311.     Mead    v.  Lord   Orrery,  3  Wankford,  1  Salk.  299. 

Alk.  239.  Robinson  v.  Pett,  3  I'.Wms.  (o)  Off.  Ex.  34. 

251.  vid.  also  Rex  v.  Simpson,   Burr.  (6)  Off.  Ex.34. 

1463.     S.  C.   1  Bl,  Rep.  456.     11  Vin.  (c)  Ibid.  92.     Vid.  infr. 

Abr.  55.  66.  (,/)  ibid.  35. 
G)  Wankford  v.  Wankford,  Salk.308. 


CHAP.  II.]        OF  EXECUTOR  BEFORE  PROBATE.  46 

sell,  give  away,  or  otherwise  dispose,  al  his  discretion,  of  the 
goods  and  chattels  of  the  testator  (e)  :  he  may  assent  to  or  pay  le- 
gacies (/) :  he  may  enter  on  the  testator's  term  for  years  (q) :  he 
may  commence  actions  in  right  of  the  testator,  as  for  trespass  com- 
mitted, or  goods  taken,  or  on  a  contract  made  in  the  testator's  life- 
time, although  he  cannot  declare  before  probate,  since,  in  order  to 
assert  such  claims  in  a  court  of  justice,  he  must  produce  the  copy 
of  the  will,  certified  under  seal  as  above-mentioned,  or  as  it  is 
sometimes  styled,  the  letters  testamentar)^;  but  when  produced, 
[47]  they  shall  have  relation  to  the  time  of  suing  out  the  writ  (A). 
So,  if  in  the  same  right  he  file  a  bill  in  equity,  a  subsequent  probate 
shall  be  equally  available  (i);  and,  according  to  a  late  case,  it  seems 
sufficient  if  it  be  obtained  at  any  time  before  the  hearing  (&).  So, 
an  executor  may  before  probate  arrest  a  debtor  to  the  estate,  and 
shall  be  justified  in  that  act  by  the  relation  of  the  subsequent  grant 
(I).  But  such  relation  shall  not  prejudice  a  third  person;  and  there- 
fore where  the  debtor,  after  being  arrested  by  the  executor  before 
probate,  paid  a  debt  to  J.  S.,  and  continued  two  months  in  prison, 
he  was  adjudged  not  to  be  a  bankrupt  from  the  time  of  the  arrest, 
so  as  to  invalidate  that  payment  (m). 

An  executor  may  also  maintain  actions  on  his  own  possession, 
as  trespass,  detinue,  or  replevin,  for  goods  or  cattle  of  the  testator 
taken  after  the  testator's  death  (n)  :  so,  if  he  be  entitled  as  execu- 
tor to  the  next  presentation  to  a  living,  and  it  become  void,  he,  or 
his  grantee,  may  maintain  a  quare  impedit  for  it  before  probate  (o). 

[4S]  So  he  may  maintain  actions,  as  trespass  or  trover,  for  such 
of  the  effects  as  never  came  into  his  actual  possession,  taken  or 
converted  after  the  testator's  decease  (/>).  So  he  may  maintain  ac- 
tions on  contracts  either  actually  made  with  him  subsequent  to  that 
event,  or  arising  by  legal  implication,  as  assumpsit  for  the  goods 
sold  by  him  (</),  or  for  money  due  to  the  testator,  received  by  the 
defendant  after  the  testator's  death  (r),  In  all  such  cases,  the  caus- 
es of  action  arise  subsequent  to  the  attaching  of  the  plaintiff's  right, 
and  therefore  he  need  not  describe  himself  as  executor  (s),  and 

(e)  Ibid.  35.  22.  87.     Cooke's  Bank.  Laws,  4th  edit. 

(  n  Ibid.  35.     11  Vin.  Abr.  204.  94. 

(»)  11  Vin.  Abr.  203.  (»)  11  Vin.  Abr.  203.     Off.  Ex.  36, 

(k)  11  Vin.  Abr.  202.  et  seq.     Com.  (0)    3  Bac.  Abr.   53.     Off.  Ex.  36. 

Dig.  Admon.  B.  9.     Off.    Ex.  56.     3  Com.  Dig.  Pleader,  0. 14.     Smithley  v. 

Bac.  Abr.  53.     9  Co.  38.     Harg.  Co.  Chomeley,  Dyer,  135. 

Litt.  292  b.  (p)  3  Bac.  Abr.   53.     Frederick  v. 

(I)  Humphreys    v.   Ingledon,    1    P.  Hook,  Garth.  154. 

Wms.  752.    Humphreys  v.  Humphreys,  (7)  Off.  Ex.  36,  37.  in  note  1.  •Anon. 

3  P.  Wms.  351.  Ventr.  109.  Bollard  v.  Spenser,  7  Term 

(/<■)    Patten,    executrix,    v.    Panton,  Bep.  358.     Harris  v.  Manna,  Ca.  Temp, 

1793,  cited  3  Bac.  Abr.  53.  Hardwicke,  204.     Cockerill  v.   Kynas- 

(/)  Off.  Ex.  Suppl.  103.     Roll.  Abr.  ton,  4  Term  Rep.  277. 

917.  (> )  Nicholas  v.  Killigrew,  Lord  Ray. 

(/«)  11  Vin.  Abr.  204.     3  Bac.  Abr.  436. 

53.     Com.   Dig.   Admon.   B.  9      Dun  (s)  Smith  v.   Burrow,  «2  Term  Rep 

comb  v.  Walker,  3  Lev.  57,     Skinn.  477. 


48  OF  EXECUTOR  BEFORE  PROBATE.     [BOOK  I. 

consequently  no  profert  of  the  letters  testamentary  is  requisite*  (1) 
So,  where  a  reversion  for  years  is  vested  in  him  in  that  character, 
he  may  avow  without  probate  for  the  rent  which  accrued  after  the 
testator's  death,  but  not  for  such  as  accrued  before  (7). 

Such  are  the  acts,  which  an  executor,  although  the  will  has  not 
received  the  sanction  of  the  spiritual  court,  is  warranted  in  per- 
forming, and  which  his  death  before  probate  will  not  annul  (w). 

On  the  other  hand,  if  he  have  elected  to  administer,  he  may 
[49]  also  before  probate  be  sued  at  law,  or  in  equity,  by  the  de- 
ceased's creditors,  whose  rights  shall  not  be  impeded  by  his  delay, 
and  to  whom,  as  executor  dejure  or  de  facto,  he  has  made  him- 
self responsible  (v). 

If  an  executor  die  before  probate,  he  is  considered  in  point  of 
law  as  intestate  in  regard  to  the  executorship  (id),  although  lie  have 
made  a  will  and  appointed  executors  ;  and  although  he  die  after 
taking  the  oath,  if  before  the  passing  of  the  grant. 

If  A.  be  executor  for  a  certain  period,  and  13.  be  nominated 
executor  for  the  time  subsequent,  and  A.  prove  the  will  ;  after  the 
time  is  expired,  B.   may  sue  without  another  probate  (x). 


Sect.  V. 

Of  the  probate. — Jurisdiction  of  granting  the  same — of  bona 

notabilia. 

I  proceed  now  to  consider  the  probate  of  a  will.  The  juris- 
diction of  proving  wills  consequent,  as  will  be  hereafter  shewn, 
[50]  on  the  power  of  granting  administrations,  regularly  belongs 
to  the  bishop  of  the  diocese,  or  the  metropolitan  of  the  province, 
in  which  the  parties  resided  at  the  time  of  -their  death  (y).  But  if 
a  testator  die  within  some  peculiar  jurisdiction,  which  is  either  re- 
gal, archiepiscopal,  episcopal,  or  archidiaconal:  in  each  of  these  the 
owner  hath  of  common  right  the  power  of  granting  probate.  This 
privilege  is  founded  on  the  notion  of  an  original  composition  be- 
tween such  owner  and  the  ordinary  of  the  diocese  for* that  pur- 
pose (2). 

(/)  Wankford  v.  Wankford,   1  Salk.  Off.  Ex.  37. 

302.  307.     Bollard  v.  Spenser,  7  Term  (u>)  Off.  Ex.  Suppl.  74,  75.  182.   1 1 

Hep.  359.  Vin.  Abr.  68.  90. 

(u)  Off.  Ex.  35.     11  Vin.  Abr.  204  (x)  Com.  Dig.   Admon.    B.   9.     fa. 

Anon.  Dyer,  367.    Wankford  v.  Wank-  Ch.  265.     11  Vin.  Abr.  56. 

ford,  l"Salk.  306,  307.  (y)  3  Bac.  Abr.  34.  39.     Com.  Dig. 

O)  Com.  Dig.  Admon.  B.  9.  Plowd.  Admon.  B.  6.     4  Burn's  Eccl.  L.  1S8. 

Com.  280  b.     11  Vin.  Abr.  205.     Did-  (z)  3  Bac.  Abr!  39.     Denham  v.Ste- 

wich  College  v.  Johnson,  2  Vcrn.  49.  phcrison,  Salk.  40,  41.    11  Vin.  Abr. 77. 

(1)  In  all  casts  of  promises  express  or  implied  made  to  or  by  an  executor  or 
idministrator  after  the  death  of  the  testator  or  intestate,  an  action  lids  by  or 
against  the  executor  or  administrator  personally,     (iiiir  \.   Huston,  8'Serg.  ?; 

Uawle,  402.  See  Coburn  v.  Jlnsarl,  3  Mass.  Rep.  J 18,  8  Mass.  Rep.  190. 


CHAP.  II.]  OF  THE  PROBATE.  50 

Courts  baron,  which  have  had  the  probate  of  wills  from  time 
immemorial,  and  have  always  continued  that  usage,  are  also  en- 
titled to  this  species  of  jurisdiction;  but  they  can  claim  it  only  by 
prescription  (a). 

By  custom  also  the  probate  of  wills  of  burgesses  belongs  to  the 
mayors  of  some  boroughs  in  respect  of  lands  devisable  within  the 
same;  yet,  as  to  personal  property,  the  will  must  be  proved  before 
the  ordinary  (6). 

But  in  general  a  probate  can  be  granted  only  in  the  court  of  the 
ordinary,  or  of  the  metropolitan,. 

[51]  If  all  the  eflects  at  the  time  of  the  testator's  death  lie  within 
one  diocese,  the  executor  ought  regularly  to  appear  before  the 
bishop,  or  his  surrogate,  and  prove  the  will. 

But  if  the  testator  hath  left  bona  notabilia,  or  effects  to  the  va- 
lue established  by  92  canon  Jac.  1.  namely,  a  hundred  shillings, 
in  two  distinct  dioceses,  or  in  several  peculiars  within  the  same 
province ;  then  the  will  must  be  proved  before  the  metropolitan, 
by  way  of  special  prerogative  (c);  whence  the  court  where  the  va- 
lidity of  such  wills  is  tried,  and  the  office  where  they  are  registered, 
are  called  the  prerogative  court,  and  the  prerogative  office,  of  the 
provinces  of  Canterbury  and  York  (d).  So  if  there  be  bona  nota- 
bilia in  those  several  provinces,  the  archbishops  shall  in  each  of 
them  grant  a  probate  according  to  the  bona  notabilia  in  their  re- 
spective provinces.  Each  of  them  has  supreme  jurisdiction,  and 
neither  can  act  within  the  province  of  the  other  (e).  If  there  be 
bona  notabilia  in  different  dioceses  of  one  province,  and  in  one 
diocese  only  of  the  other;  in  respect  to  the  former,  the  archbishop 
shall  have  the  probate  ;  in  respect  to  the  latter,  the  particular 
bishop  (/). 

[52]  So  if  the  testator,  not  in  itinere,  die  in  one  diocese,  not 
having  any  goods  there,  but  having  bona  notabilia  in  another  dio- 
cese, the  archbishop  shall  grant  the  probate  (g). 

So  if  the  goods  be  in  sevefal  peculiars  of  a  bishop's  diocese,  in 
that  Case  probate  shall  not  be  granted  by  him,  but  by  the  metropo- 
litan, inasmuch  as  peculiars  are  exempt  from  ordinary  jurisdic- 
tion \h).  But  where  the  testator  dies  possessed  of  goods  in  the 
diocese  of  an  archbishop,  and  in  a  peculiar  of  the  same  diocese, 
'there  must  be  several  probates  :  the  archbishop  shall  have  no  pre- 
rogative,   because  the  peculiar  was  derived  out  of  his  episcopal  ju- 

(a)  3  Bac.  Abr.  39.      Off.  Ex.   44.     56.  pi.  7.     Vin.  Harg\  Co.  Litt.  94. 
Denham  v.  Stephenson,  Salk.  41.     At-         (e)  3  Bac.  Abr.  36.     Burston  v.  Kid- 
kins  v.  Hill,  Cowp.  286.  .      lev,   1   Salk.  39.     Shaw  v.  Stougrhton, 

(b)  3  Bac.  Abr.  40.  Off.  Ex.  45.  .  2  Lev.  86.  11  Vin.  Abr.  76.  pi.  15. 
Off.  Ex.  Suppl.  10.  Off.  Ex.  48. 

(c)  2  Bl.  Com.  509.     3  Bac.  Abr.  36.         (/)  Off.  Ex.  48. 

Com.  Dig.  Admon.  B.  3.     Off.  Ex.  45.  (g)  3  Bac.  Abr.  3'6.     Roll.  Abr.  909-. 

48.  •  4  Burn.  Eccl.  L.  191.     Roll.  Abr.  4  Burn.  Eccl.  L.  189.     11  Vin.  Abr.  80. 

909.     11  Vin.   Abr.  79.     Swinb.    p.  6.  (A)    4   Burn.   Eccl.   L.  191.  11  Viw. 

9.11.  Abv.  SO.   Gibs.  Cod.  472.  Swinb.  p.  6. 

(d)  2  Bl.  Com. -509.     11  Vin.  Abr.  s.  11, 


52  OF  THE  PRORATE,  [ROOK  I. 

risdiction  (a).  By  the  canon  92  Jac.  1.  above  referred  to,  goods 
which  a  man  has  with  him,  who  dies  in  ilinere,  shall  not  make 
bona  notabilia  (k);  but  if  a  man  have  two  houses  in  different  dio- 
ceses, and  resides  chiefly  at  one,  but. sometimes  goes  to  the  other, 
and  being  there  for  a  day  or  two,  dies,  leaving  no  bona  notabilia 
in  the  first  mentioned  house,  probate  shall  be  granted  by  the  bishop 
of  the  diocese  in  which  the  testator  died,  for  he  was  commorant 
there,  and  not  there  as  a  traveller  (/). 

[53]  If  there  be  bona  notabilia  in  England  and  Ireland,  several 
probates  shall  be  granted  by  the  archbishop  or  bishop  in  England, 
and  the  archbishop  or  bishop  in  Ireland,  as  the  case  may  require  (m). 
The  probate  of  a  bishop's  will,  although  he  had  goods  only  in  his 
own  jurisdiction,  belongs  to  the  archbishop  of  the  province  (;?). 
If  the  testator  died  beyond  sea,  although  the  goods  be  in  one  dio- 
cese only,  the  archbishop  is  to  grant  the  probate  (o).  If  the  pro- 
bate be  granted  by  a  bishop,  or  inferior  judge,  when  it  does  not 
belong  to  him,  it  is  void;  but  if  it  be  granted  by  the  metropolitan 
when  it  does  not  belong  to  him,  it  is  only  voidable,  and  is  of  force 
till  reversed  by  sentence,  for  he  hath  jurisdiction  over  all  the  dio- 
ceses within  his  province  (p). 

In  the  above-mentioned  canon,  Jac.  1.  there  is  a  provision,  that 
the  jurisdiction  of  those  dioceses  shall  not  be  prejudiced  where,  by 
composition  or  custom,  bona  notabilia  are  rated  at  a  greater  sum, 
as  in  London,  where  by  composition  they  are  to  amount  to  ten 
pounds  (q). 

Nor  is  it  necessary  that  the  deceased  should  have  left  effects  to 
the  value  of  five  pounds  in  each  of  the  several  dioceses  where  they 
are  dispersed;  if  there  be  effects  in  any  one  diocese,  other  than  that 
[54]  in  which  he  died,  to  the  amount  of  five  pounds,  they  consti- 
tute bona  notabilia  (r).  But  if  the  goods  in  the  diocese  where 
he  died  be  of  the  value  of  ten  pounds  or  upwards,  and  he  have  not 
left  goods  amounting  to  five  pounds  in  another  diocese,  they  shall 
not  .be  denominated  bona  notabilia  (.s).  If  goods  be  left  in  two 
dioceses  to  the  amount  of  five  pounds  in  the  whole,  they  shall  be 
bona  notabilia,  and  consequently  subject  to  the  archbishop's  ju- 
risdiction (/),  for  in  that  case  neither  of  the  bishops  has  an  exclu- 
sive authority.  Bona  notabilia  may  consist  of  goods  to  the  value 
of  five  pounds  in  one  diocese,  and  a  lease  or  term  for  years  of  that 
value  in  another,  in  which  the  lands  lie  (w). 

'  (!)  4  Rum.  Eccl.  I,.  191.  Gibs.  Cod.  f;jj  lb.    lb.    36.   4  Burn.  Eccl.    I,. 

472.  Cro.  El.  719.   Vid.  1  Rl.  Com.  380.  193.   Off.  Ex.   Suppl.  27.  11  Vin.  Abr. 

(k)  Vid.  Off.  Ex.  45.  &  Suppl.  27.  75.  80.     Gibs.  Cod.  472. 

(/)  4  Burn.  Eccl.  L.  191.    Milliard  v.  (rj)  3  Bac.  Abr.  37.  Ofi.  Ex.  45. 

Cox,  1  Salk.  37.  (r)  Ibid.  87*.     Godolpb.  69. 

(///)  3  Bac.    Abr.  3G.   Daniel  v.    Lu-  (s)  Ibid.  37.     Ibid.  09. 

ker,  Over,  305.    Roll.  Abr.  908.   Gibs.  (/)  4  Rum.  Eccl.  L.  189.  Roll.  Abr, 

Cod.  472.  908,  909. 

(n)  3  Bac.  Abr.  37.    4  Inst.  335  (u)    3    Rac.   Abr.    37.      Com,    Dig 

(o)  lb.  lb.  35.     Roll.  Abr.  908.  Admon.  B.4. 


CHAP.  II.]  OF  THE  PROBATE.  54 

Debts  due  to  the  deceased,  however  difficult  to  be  collected,  or 
however  desperate,  may  make  bona  notabilia  (v). 

So,  it  seems,  a  debt  due  from  the  king,  for  which  there  is  no 
remedy  but  by  petition,  may  fall  within  the  same  description  (w). 

But  if  there  be  a  bond  in  the  penalty  of  five  pounds  to  secure  the 
payment  of  a  less  sum,  and  the  same  be  forfeited,  it  shall  not  be 
classed  among  bona  notabilia  {x) .  And  it  was  so  held  even  ante- 
[55]  cedently  to  the  statute  4  &  5  Ann.  c.  16.  s.  13.,  whereby  the 
penalty  is  saved  on  bringing  principal,  interest,  and  costs  into 
court. 

Nor  shall  lands  devised  to  executors  for  payment  of  debts  and 
legacies,  although  they  become  assets,  be  considered  as  such 
goods  (y). 

On  this  point  the  law  makes  a  distinction  between  debts  by  spe- 
cialty and  debts  by  simple  contract.  It  regards  debts  by  specialty 
as  the  deceased's  goods  in  that  diocese  where  the  securities  are 
found  at  the  time  of  his  death,  although  they  were  entered  into  in 
another,  or  the  debtor  or  creditor,  at  the  time  when  they  were  exe- 
cuted, lived  in  a  different  diocese  (z).  But  debts  by  simple  con- 
tract follow  the  person  of  the  debtor,  and  therefore  are  esteemed 
the  deceased's  effects  in  that  diocese  where  the  debtor  resided  at 
the  creditor's  death  («).  On  this  principle  it  hath  been  holden, 
that  a  judgment  obtainedin  one  of  the  courts  at  Westminster,  al- 
though in  an  action  laid  in  Dorsetshire,  made  bona  notabilia, 
because  the  record  was  at  Westminster;  but  that  a  debt  on  a  bill  of 
exchange  followed  the  parson  of  the  debtor  (b). 

An  annuity  out  of  a  parsonage  shall  be  reputed  to  be  property  in 
the  diocese  where  the  parsonage  lies(c). 

[56]  And  leases  for  years  where  the  land  lies,  not  where  the 
lease  is  merely  found  (d). 

Debts  on  recognizances,  statutes,  or  judgments,  shall  be  bona 
notabilia,  where  they  were  acknowledged  or  given  (e). 

And  by  statute  4  &  5  Ann.  c.  16.  s.  26.  salary,  wages,  or  pay 
due  to  persons  for  work  in  any  of  her  majesty's  yards  or  docks, 
shall  not  be  taken  or  deemed  to  be  bona  notabilia,  whereby  to 
found  the  jurisdiction  of  the  prerogative  courts. 

But  to  obtain  an  order  of  the  Court  of  Chancery  for  the  payment 
of  money  out  of  court,  however  small  the  amount,  a  prerogative 
probate  is  held  to  be  indispensable  {/). 

(v)  3  Bac.  Abr.  47.     Com.  Dig'.  Ad-  ams  v.  Savage,  Lord  Raym.  854.  HVin. 

mon.  B.  4.  Abr.  77.  80. 

O)  Oft".  Ex.  46.     11  Yin.  Abr.  80.  (<•)  Com.  Dig.  Admon.  B.  4.  Daniel 

(x)  Oft".  Ex.46.  v.  Luker,  Dyer,  305.  in  note.    11  Yin. 

(.//)  3  Bac.  Abr.  37.   Off.  Ex.  47.  11  Abr.  80. 

Vin.  Abr.  80.  («?)•  Com.    Dig".  Admon.  B.  4. 

(r)    3  Bac.  Abr.  37.     Off.   Ex.  46.  (?)  Com.  Dig.  Admon.  B.  4.  Daniel  v. 

Roll.  Abr.  909.   Shep.  Touchst.  463.  Luker,   Dyer,  305.  in  note. 

(a)  3  Bac.  Abr.  38.  Off.  Ex.  47.  '       (/)  Newman  v.  Hodgson,  7  Yes.  Jim, 

(A)  Gota v.  Strode,  Carth.  149.  Den-  409'.    Tbomas  v.   Davics,  12  Yes    jun, 

ham   \     Stephenson,   1   Salk.   40.    A.l-  417. 

6 


56  OF  THE  PROBATE.  [BOOK  I. 

If  the  will  he  not  contested,  the  executor  may  prove  it  in  the 
common  form  by  his  own  oath,  and  in  some  of  the  dioceses  of 
York,  with  the  additional  oath  of  one  witness;  or  in  case  its  validi- 
ty is  called  in  question,  he  will  be  required  to  substantiate  it  more 
solemnly  per  testes,  by  the  examination  of  witnesses  in  the  pre- 
sence of  the  parties  interested,  as  the  widow  and  next  of  kin  (g). 
This  latter  mode  of  proving  a  will  is  seldom  resorted  to,  unless  at 
the  instance  of  a  party  whose  object  is  to  oppose  it  (h) ;  but  the 
executor  himself  may,  for  greater  safety,  if  he  have  an  interest  in 
the  will,  elect  to  have  it  sanctioned  by  this  more  decisive  species 
of  evidence,  and  call  on  the  next  of  kin  to  see  it  propounded  (*). 

[57]  When  a  will  is  to  be  thus  solemnly  proved,  two  witnesses 
are  indispensable;  for  generally,  by  the  civil  law,  the  testimony  of 
two  persons  is  requisite,  and,  therefore,  if  in  the  probate  of  a  will 
that  of  one  witness  be  disallowed  in  the  ecclesiastical  court,  no 
mandamus  will  lie  ;  for  inasmuch  as  that  court  has  jurisdiction  of 
the  subject  matter,  it  has  also  jurisdiction  of  the  mode  of  proof,  and 
the  proceedings  respecting  it  (k). 

It  is  not  necessary  that  such  witnesses  should  have  read  the  will, 
or  heard  it  read,  if  they  can  depose  that  the  testator  declared  that 
the  writing  produced  was  his  last  will  and  testament  (/),  or  that 
he  duly  executed  the  same  in  their  presence. 

If  the  will  or  codicil  be  written  in  the  testator's  hand-writing, 
although  it  have  neither  his  name  subscribed,  nor  his  seal  affixed 
to  it,  nor  had  witnesses  present  at  its  publication,  yet  if  the  omis- 
sion of  these  solemnities  afford  no  presumption  of  a  change  of  in- 
tention (m),  it  is  of  sufficient  validity  on  proof  of  the  hand-writing 
(?i),  by  the  evidence  of  two  persons  acquainted  with  the  character 
of  it  from  having  seen  him  write;  if,  however,  there  be  a  differ- 
ence of  opinion  in  witnesses  as  to  hand-writing,  the  ecclesiastical 
court  will  receive  the  evidence  of  persons  skilled  in  hand-writing 
by  comparison,  who  had  not  seen  him  write  (o);  but  in  case  there 
be  a  single  subscribing  witness  to  the  will,  and  who  appears  to  at- 
test it,  the  testimony  of  one  other  person  only  to  the  above-men- 
tioned effect  is  requisite. 

[58]  So,  although  written  by  another  hand,  nor  even  signed  by 
the  testator,  if  it  can  be  shewn  to  be  according  to  his  instructions, 
and  read  over  and  approved  by  him,  it  is  equally  effectual  (/?). 

And  so  where  interrogatories  were  put  to  a  testator  who  was  in 
extrcyilis,  but  in  full  exercise  of  his  testamentary  powers,  and 
such  interrogatories  and   his  answers  were  committed  to  writing, 

(g)  3  Bac.  Ahr.  39.   2  Bl.  Com.  508.         (/)  4  Burn.  Eccl.  L.  205.     Godolph. 

4  Burn.  Eccl.  L.  205,  207.     Godolph.  66. 
65.    1  Ought  20.     Swinb.  b.  6.  s.  14.  (m)  Supr.  3. 

(/*)  4  Burn.  Eccl.  L.  207.  («)  2  Bl.  Com.  501. 

(i)  4  Burn.  Eccl.  L.  208.     1  Ought.         (o)    Beaumont  v.  Perkins,   1  Phill. 

20.  Rep.  78. 

(/,)  4  Burn.  Eccl.  L.  206.    Roll.  Abr.         (/>)  2  Bl.  Com.  501.     Yicl.  Limber}' 

300.     Twaites  v.  Smith,  1  P.  Wins.  12.  v.  Mason,  Com.  Rep.  451. 


CHAP.   II.]  OF  THE  PROBATE.  58 

and  read  over  to  and  approved  by  him,  it  was  held  good  (q).  But 
the  instructions,  to  be  effectual,  must  he  complete,  and  not  left  in 
an  unfinished  state,  and  subject  to  the  further  consideration  of  the 
testator  (r). 

In  granting  probate,  the  form  of  the  instrument  is  not  looked 
to  by  the  ecclesiastical  court,  it  is  the  intention  of  the  party,  and 
whether  the  instrument  appears  to  be  testamentary;  as  a  paper  ex- 
pressed to  be  a  deed  of  gift,  and -declaring  "  !•  do  hereby  give  (af- 
ter my  death)"  (s),  and  other  cases  of  the  like  nature,  where  the 
anioias  testandl  is  clearly  shewn  (/).  (1) 

If  a  testamentary  paper  be  in  the  hand-writing  of  the  deceased, 
although  unfinished  and  unexecuted,  if  prevented  by  the  act  of 
Gi#d,  it  will  be  admitted  to  probate  (m). 

An  executor  on  taking  probate  swears  that  the  writing  contains 
the  true  last  will  and  testament  of  the  deceased,  as  far  as  the  de- 
ponent knows  or  believes,  and  that  he  will  truly  perform  the  same 
by  paying  first  the  testator's  debts,  and  then  the  legacies  therein 
contained,  as  far  as  the  goods,  chattels,  and  credits  will  thereto  ex- 
tend, and  the  law  charge  him;  and  that  he  will  make  a  true  and  . 
perfect  inventory  of  all  the  goods,  chattels,  and  credits,  and  ex- 
hibit the  same  into  the  registry  of  the  spiritual  court  at  the  time 
assigned  by  the  court,  and  render  a  just  account  thereof  when  law- 
fully required. 

When  the  will  is  proved,  the  original  is  deposited  in  the  registry 
of  the  ordinary  or  metropolitan,  and  a  copy  thereof  in  parchment 
is  made  out  under  his  seal,  and  delivered  to  the  execulor,  together 
with  a  certificate  of  its  having  been  proved  before  him  ;  and  such 
copy  and  certificate  are  usually  styled  the  probate  (v). 

((/)    Green    v.   Skipworth,    1    Plull.  v.  Corp,  Prerog.  Court.  1793.     Hog  v. 

Rep.  53.  Lashley,  ib.  1789.     Marwick  v.  Taylor, 

(>•)    Devereux    v.  Bullock,    1  Phill.  ib.   1722.      Shergold  v.  Shergold,   ib. 

Rep.  00.  1714. 

(s)  Thorold  v.  Thorold,  1  Phill.  Rep.  (u)  Scott  v.  Rhodes,  1  Phill.  Rep.  12. 
1.  (v)  2  Bl.  Com.  508.    4  Burn.    Eccl. 

(/)  Green  v.  Proude,    1  Mod.    117.  L.   215.  11  Vin.  Abr.   56.  pi.  7.    Bac. 

Rigden  v.  Vallier,  2  Ves.  252.     Corp  Use  of  the"  Law,  67. 


(1)  A  paper  somewhat  in  the  form  of  a  letter,  beginning',  "In  the  name  of 
God,  Amen.  If  I  should  not  come  to  you  again,  my  son  M.  shall  pa}',  &c."  was 
held  not  to  be  admissible  to  record  as  the  will  of  the  writer  of  it,  evidence  being 
given  that  he  went  to  Kentucky,  and  returned,  and  lived  several  weeks  after. 
Wagner  v.  M' Donald,  2  Harr.  &  Johns.  346. 


59  OF  THE  PROBATE  OF  THE         [BOOK  I. 

[59]  Sect.  VI. 
Of  the  probate  of  nuncupative  wills. 

A  nuncupative  will  is  also  capable  of  being  proved  («).  But 
by  the  statute  of  frauds,  after  six  months  from  the  speaking  of  the 
pretended  testamentary  words,  no  testimony  shall  be  received  to 
prove  any  will  nuncupative,  except  the  testimony,  or  the  substance 
thereof,  were  committed  to  writing  within  six  days  after  the  mak- 
ing of  such  will.  And  no  letters  testamentary,  or  probate  of  any 
nuncupative  will,  shall  pass  the  seal  of  any  court  till  fourteen  days 
at  the  least  after  the  decease  of  the  testator  be  fully  expired. 

Nor  shall  any  nuncupative  will  be  at  any  time  received*to  be 
proved,  unless  process  have  first  issued  to  call  in  the  widow,  or 
next  of  kindred  to  the  deceased,  to  the  end  they  may  contest  the 
same  if  they  please  (o).  (1)  And  (as  we  may  (c)  remember)  no 
will  in  writing  concerning  any  goods  or  chattels,  or  personal  es- 
tates, shall  be  repealed,  nor  shall  any  clause,  devise,  or  bequest 
•therein  be  altered  or  changed  by  any  words,  or  will  by  word  of 
mouth  only;  except  the  same  be  in  the  life  of  the  testator  commit- 
ted to  writing,  and  after  the  writing  thereof  read  to  the  testator, 
and  allowed  by  him,  and  proved  to  be  so  done  by  three  witnesses 
at  the  least. 


[60]  Sect.  VII. 

Of  the  probate  of  the  ivills  of  seamen  and  marines. 

In  regard  to  the  making  and  probate  of  the  wills  of  petty  of- 
ficers and  seamen  in  the  king's  service,  and  of  non-commissioned 
officers  of  marines,  and  marines  serving  on  board  a  ship  in  the 
king's  service,  by  the  statute  55  Geo.  3.  c.  60.  above  referred  to 
(d), !  no  will  made  by  any  petty  officer  or  seamen,  non-commission- 
ed officer  of  marines  or  marine,  before  his  entry  into  his  majesty's 
service,  shall  be  valid  to  pass  or  bequeath  any  wages,  pay,  prize- 
money,  bounty-money,  or  other  allowances  of  money,  to  accrue 
due  for  or  in  respect  of  the  service  of  any  such  petty  officer  or 
seaman,  non-commissioned  officer  of  marines  or  marine,  in  his  ma- 
jesty's navy;  nor  shall  any  will  made  or  to  be  made  by  any  such 
petty  officer  or  seaman,  non-commissioned  officer  of  marines  or 
marine,  who  shall  be  or  shall  have  been  in  the  service  of  his  ma- 
jesty, his  heirs  or  successors,  of  at  any  time  since,  be  good,  valid, 

(a)  2  Bl.  Com.  500.  (c)  Vid.  supr.  16. 

(6)  Vid.  supr.  4.  (d)  Vid;  supr.  5. 

(1)  The  Act  of  1705,  sect.  5.  contains  the  sumc  provision,  verbatim.  (Purd. 
Dig.  801.  1   Dall.   Laws,  53.  1  Sm.   Laws,  33.) 


CHAP.  11.  J  WILLS  OE  SEAMEN.  60 

or  sufficient  to  bequeath  any  such  wages,  &c.  due  or  to  grow  due 
to  any  such  petty  officer,  &c.  unless  such  will  shall  contain  the 
name  of  the  ship  to  which  the  person  executing  the  same  belong- 
ed at  the  time,  or  to  which  he  last  belonged;  and  also  a  full  descrip- 
tion of  the  degree  of  relationship  or  residence  of  the  person  or 
persons  to  whom  or  in  whose  favour,  as  executor  or  executors,  the 
same  shall  be  granted  or  made;  and  also  the  day  of  the  month  and 
year,  and  the  name  of  the  place  when  and  where  the  same  shall 
have  been  executed;  nor  shall  any  such  will  be  good,  valid,  or  suf- 
ficient for  the  purposes  aforesaid,  unless  the  same  shall,  in  the  se- 
veral cases  hereinafter  specified,  be  executed  and  attested  in  the 
manner  hereinafter  mentioned;  that  is  to  say,  in  case  any  such  will 
shall  be  made  by  any  such  petty  officer,  &c.  at  any  time  or  times 
whilst  they  shall  respectively  belong  to  and  be  on  board  of  any  ship 
or  vessel  belonging  to  his  majesty,  his  heirs  or  successors,  as  part 
of  the  complement  thereof,  or  be  borne  on  the  books  of  any  such 
ship  or  vessel  as  a  supernumerary,  or  as  an  invalid,  or  for  victuals 
only,  unless  such  will  shall  be  executed  in  the  presence  of  and  at- 
tested by  the  captain  or  other  officer  having  the  command  of  such 
ship  or  vessel,  or  (during  the  absence  of  such  captain  or  other  of- 
ficer on'leave  or  on  separate  service)  by  the  commanding  officer  of 
such  ship  or  vessel  for  the  time  being;  and  who,  in  that  case,  shall 
state  at  the  foot  of  such  attestation  the  absence  of  such  captain  or 
other  commanding  officer  from  such  ship  or  vessel,  at  the  time  of 
the  execution  of  such  will,  and  the  occasion  thereof;  or  in  case  of 
the  inability  of  such  captain  or  commanding  officer  by  reason  of 
wounds  or  sickness,  to  attest  any  such  will,  then,  unless  such  will 
shall  be  executed  in  the  presence  of  and  attested  by  the  first  lieu- 
tenant or  other  officer  next  in  command  of  such  ship  or  vessel, 
who  shall  state  at  the  foot  of  such  attestation  the  inability  of  such 
captain  or  commanding  officer  to  attest  the  same  :  in  case  any  such 
will  shall  be  made  by  any  such  petty  officer,  &c.  in  any  of  his 
majesty's  hospitals,  or  on  board  of  any  of  his  majesty's  hospital 
ships,  or  in  any  military  or  merchant  hospital,  or  at  any  sick  quar- 
ters either  at  home  or  abroad,  unless  such  will  shall  be  executed  in 
the  presence  of  and  attested  by  the  governor,  physician,  surgeon, 
assistant-surgeon,  agent,  or  chaplain  of  any  such  .hospital  or  sick 
quarters  of  his  majesty,  or  by  the  commanding  officer,  agent,  phy- 
sician, surgeon,  assistant-surgeon,  or  chaplain,  for  the  time  being  of 
any  such  hospital  ship,  or  by  the  physician,  surgeon,  assistant-sur- 
geon, agent,  chaplain,  or  chief  officer  of  such  military  or  merchant 
hospital,  or  other  sick  quarters,  or  one  of  them  :  in  case  any  such 
will  shall  be  made  by  any  such  petty  officer,  &ct  on  board  of  any 
ship  or  vessel  in  the  transport  service,  or  in  any  merchant  ship  or 
vessel,  unless  the  same  shall  be  executed  in  the  presence  of  and  at- 
tested by  some  commission  or  warrant  officer,  or  chaplain  in  his 
majesty's  navy,  or  some  commission  officer,  or  chaplain  belonging 
to  his  majesty's  land  forces  or  royal  marines,  or  the  governor,  phy- 
sician, surgeon,  assistant-surgeon,  or  agent  of  any  hospital  in  his 


GO  OF  THE  PROBATE  OF  THE  [BOOK  I. 

majesty's  naval  or  miRtary  service,  who  may  happen  to  be  then  on 
board  of  such  transport  or  merchant  vessel,  or  by  the  master  or  first 
mate  of  such  transport  or  merchant  vessel,  or  one  of  them  :  in  case 
any  such  will  shall  be  made  by  any  such  petty  officer,  &c.   after  he 
shall  have  been  discharged  from  his  majesty's   service;  unless  the 
same  (if  the   party  making  such  will  shall  then  reside  in  London 
or  Westminster,  or  within  the  bills  of  mortality)  shall  be  executed 
in  the  presence  of  and  attested  by  the  inspector  for  the  time  being 
of  seamen's  wills,  or  his  assistant  or  clerk;  or  unless  the  same  (if 
the  party  making  such  will  shall  then  reside  at  or  within  the  dis- 
tance of  seven   miles  from  any  port  or  place  where  the  wages  of 
seamen  in  his  majesty's  service  are  paid)  shall  be  executed  in  the 
presence  of  and  attested  by  one  of  the  clerks  in  the  office  of  the 
treasurer  of  the  navy  resident  at  such  port  or  place;  or  unless  the 
same  (if  the  party  making  such  will  shall  then  reside  at  any  other 
place  in   Great  Britain  or  Ireland,  or  in  the  islands  of  Guernsey, 
Jersey,  Alderney,  Sark,  or  Man)  shall  be  executed  in  the  presence 
of  and  attested  by  one  of  his  majesty's  justices  of  the  peace,  or  by 
the  minister  or  officiating  minister  or  curate  of  the  parish  or  place 
in  which  such   will  shall  be  executed;  or  unless  the  same  (if  the 
party  making  such  will  shall  then  reside  in  any  other  part  of  his 
majesty's  dominions,  or  any  colony,  plantation,  settlement,  fort, 
factory,  or  any  other  foreign  possession  or  dependency  of  his  ma- 
jesty, his  heirs  or  successors,  or  any  settlement  within  the  charter 
of  the  East  India  Company)  shall  be  executed  in  the  presence  of 
and  attested  by  some  commission  or  warrant  officer  or  chaplain  of 
his  majesty's  navy,  or  commission  officer  of  royal  marines,  or  the 
commissioner  of  the  navy,  or  naval  storekeeper  at  one  of  his  ma- 
jesty's naval  yards,  or  a  minister  of  the  church  of  England  or 
Scotland,  or  a  magistrate  or  principal  officer,  residing  in  any  such 
island,  colony,  plantation,  settlement,  fort,  factory,  or  other  pos- 
session or  dependency  of  his  majesty,  or  settlement  within   the 
charter  of  the  East  India  Company;  or  (if  the  party  making  such 
will  shall  then  reside  at  any  place  not  within  his  majesty's  domin- 
ions, or  any  settlement,  fort,  factory,  or  other  foreign  possession  or 
dependency  of  his  majesty,  his  heirs  or  successors,  or  any  settle- 
ment within   the    charter  of  the  East  India  Company),  unless  the 
same  shall   be   executed  in   the  presence  of  and  attested  by  the 
British  consul  or  vice-consul,  or  some  officer  having  a  public  ap- 
pointment or  commission,  civil,  naval,  or  military  under  his  majes- 
ty's government,  or  by  a  magistrate  or  notary-public,  of  or  near 
the  place  where  such  will  shall  be  executed. 

Every  will,  which  hath  been,  or  which  at  any  time  or  times 
hereafter  shall  be  made  by  any  such  petty  officer,  <S:c.  at  any  time 
or  times  whilst  they  were  or  shall  be  respectively  prisoners  of  war 
in  parts  beyond  the  seas,  are  and  shall  be  good,  valid,  and  suffici- 
ent ;  provided  such  will  shall  have  been  executed  in  the  presence 
of  and  attested  by  some  commission  or  warrant  officer  of  his  ma 
jesty's  navy,  commission  officer  of  royal  marines,  physician,  sur 


clIAP.  II.]  WILLS  OF  SEAMEN.  60 

geon,  assistant  surgeon,  agent  or  chaplain  to  some  naval  hospital,  or 
some  commission  officer,  physician,  surgeon,  assistant-surgeon,  or 
chaplain  of  the  army,  or  any  notary-public. 

But  no  will  of  any  seaman,  contained,  printed,  or  written  in 
the  same  instrument,  paper,  or  parchment,  with  a  letter  of  attor- 
ney, shall  be  good  or  available  in  law,  to  any  intent  or  purpose 
whatever. 

And  all  captains  and  commanders  of  ships  shall,  upon  their 
monthly  muster  books  or  returns,  specify  which  of  the  persons 
mentioned  in  the  said  returns  have  made  or  granted  any  will  during 
that  month  or  other  space  of  time  from  the  preceding  return,  by 
inserting  the  date  thereof  opposite  the  party's  name,  under  the 
head  of  "Will." 

But  before  any  such  will  shall  be  attempted  to  be  acted  upon  or 
put  in  force,  the  same  shall  be  sent  to  the  treasurer  of  the  navy,  at 
the  navy-pay  office,  London,  in  order  that  the  same  may  be  exam- 
ined by  the  inspector  of  seamen's  wills,  who*,  or  his  assistants,  shall 
immediately  on  receipt  of  every  such  will,  duly  register  the  same, 
in  a  numerical  and  alphabetical  mariner,  in  books  to  be  kept  for 
that  purpose*  specifying  the  date  of  such  will,  the  place  where  ex- 
ecuted, and  the  name  and  addition,  names  and  additions  of  the  per- 
son or  persons  to  whom  or  in  whose  favour,  as  executor  or  execu- 
tors, the  same  shall  have  been  granted  or  made;  and  also  the  names 
and  additions  of  the  witnesses  attesting  the  same,  and  shall  mark 
the  said  wills,  with  numbers  corresponding  with  the  numbers  made 
on  the  entries  thereof  in  the  said  books ;  and  the  said  inspector 
shall  take  all  due  and  proper  means  to  ascertain  the  authenticity  of 
every  such  will  ;  and  in  case  it  shall  appear  to  him,  or  he  shall 
have  reason  to  suspect  that  any  such  will  is  not  authentic,  he  shall 
forthwith  give  notice  in  writing  to  the  person  or  persons  to  whom 
or  in  whose  favour  such  will  shall  have  been  made,  as  executor  or 
executors,  that  the  same  is  stopped,  and  the  reason  thereof,  and 
shall  also  report  the  same  to  the  treasurer  or  paymaster  of  the  na- 
vy, and  shall  enter  his  caveat  against  such  will,  which  shall  pre- 
vent any  money  from  being  had  and  received  thereon,  until  the 
same  shall  be  authenticated  to  the  satisfaction  of  the  said  treasurer 
or  paymaster;  but  if  upon  such  examination  and  enquiry  it  shall  ap- 
pear to  the  said  treasurer,  paymaster  or  inspector,  that  such  will  is 
authentic,  the  said  inspector,  or  his  assistant,  shall  sign  his  name  to 
such  will,  and  also  put  a  stamp  thereon  in  token  of  his  approba- 
tion thereof. 

When  any  petty  officer,  &c.  who  shall  have  belonged  to  any 
ship  or  vessel  of  his  majesty,  his  heirs  or  successors,  has  died,  or 
shall  hereafter  die,  having  left  a  will  or  testament  appointing  any 
executor  or  executors  therein,  no  pay,  &c.  which  may  have  been 
diic  or  owing  to  such  testator  at  the  time  of  his  death,  shall  be 
paid  over  to  or  recovered  by  such  executor  or  executors,  except 
upon  the  probate  of  such  will,  to  be  obtained  in  the  following  man- 
ner; videlicet,  after  such  will  shall  have  been  so  transmitted,  re- 


GO  OF  THE  PROBATE  OF  THE         [BOOK  I. 

gistered,  inspected  and  approved,  as  hereinbefore  directed,  the  in- 
spector of  seamen's  wills  shall  issue  or  cause  to  be  issued,  to  the 
person  named  and  described  as  executor  or  executrix  of  such  will, 
a  check  in  lieu  thereof,  containing  directions  to  return  the  same, 
upon  the  testator's  death,  to  the  treasurer  or  pay  master  of  his  ma- 
jesty's navy:  the  form  of  which  check  is  set  forth  in  the  act. 

And  in  the  event  of  the  testator's  death,  the  minister,  officiat- 
ing minister,  or  curate  of  the  parish  in  which  the  executor  or  exe- 
cutrix may  then  reside,  shall,  upon  being  applied  to  for  his  signa- 
ture to  the  certificate  at  the  foot  of  the  check,  examine  such  execu- 
tor or  executrix,  and  such  two  inhabitant  householders  of  the  pa- 
rish, as  may  be  disposed  to  sign  the  first  certificate  on  the  check, 
touching  the  claim  of  the  executor  or  executrix  ;  and  being  satis- 
fied of  his  or  her  being  the  person  described  as  executor  or  execu- 
trix in  the  check,  the  executor  or  executrix  shall  subscribe  the  ap- 
plication subjoined  to  the  check  (the  blank  therein  being  first  filled 
up  agreeably  to  the  truth),  in  the  presence  of  the  said  minister, 
officiating  minister,  or  curate  ;  and  the  said  two  inhabitant  house- 
holders shall  also'  subscribe  the  said  first  certificate  on  the  check 
(the  blanks  therein  being  first  filled  up  agreeably  to  the  truth)  in 
the  like  presence  ;  for  which  respective  purposes  the  executor  or 
executrix,  and  the  householders,  shall  attend  at  such  time  and  place, 
times  and  places,  as  the  minister,  officiating  minister,  or  curate 
shall  appoint;  and  the  minister,  officiating  minister,  or  curate  shall 
sign  the  second  certificate  on  the  check  (the  blanks  therein,  and  in 
the  description  thereunto  sububjoined,  being  first  filled  up  agreeably 
to  the  truth);  and  the  executor  or  executrix  shall,  before  his  or  her 
examination,  or  his  or  her  signing  the  said  application,  pay  to  the 
minister,  officiating  minister,  or  curate,  a  fee  of  two  shillings  and 
sixpence  for  his  trouble  on  the  occasion  ;  and  the  application  and 
certificates,  being  completed  according  to  the  directions  therein 
given,  shall  be  transmitted  by  the  minister,  officiating  minister,  or 
curate,  by  the  general  post,  addressed  to  the  treasurer  or  to  the 
paymaster  of  the  navy,  London;  and  the  original  will  having  been 
passed  and  stamped  in  the  manner  directed  by  the  act,  the  inspec- 
tor of  seamen's  wills,  or  his  assistant,  shall  note  thereon  the  amount 
of  wages  due  to  the  deceased,  as  calculated  on  the  search  sent  to 
the  inspector  from  the  navy  office,  and  shall  forward  such  will  to 
a  proctor  in  Doctors*  Commons,  in  order  to  his  obtaining  probate 
thereof :  And  in  case  the  executor  or  executrix  shall  not  reside 
within  the  bills  of  mortality,  the  inspector  shall  also  forward  to 
such  proctor  a  letter  addressed  to  the  minister,  in  the  form  or  to 
the  effect  stated  in  the  act. 

And  such  proctor  having  received  the  will  and  the  letter  so  writ- 
ten by  the  inspector  (in  case  such  letter  shall  be  necessary  J,  shall 
immediately  sue  out  the  previous  commission  or  requisition,  or 
take  such  other  proper  and  legal  steps  as  may  be  necessary  towards 
enabling  the  executor  or  executrix,  so  applying  for  probate  of  the 
will,  to  obtain  the  same  ;  and   shall  enclose  in  the  letter  such  pre- 


CHAP.  II.]  WILLS  OF  SEAMEN.  60 4 

vious  commission  or  requisition,  or  other  legal  or  necessary  instru- 
ment, with,  instructions  for  executing  the  same,  and  also  a  copy  of 
the  will  ;  and  the  letter  and  enclosures  shall  be  forwarded  to  the 
minister  by  the  general  post,  agreeably  to  the  address  put  thereon 
by  the  inspector  of  seamen's  wills. 

The  minister  immediately  upon  the  receipt  of  such  previous 
commission  or  requisition,  or  other  instrument,  is  to  take  such  steps 
as  to  him  may  seem  proper  or  necessary  for  procuring  the  execu- 
tion of  such  previous  commission  or  requisition,  or  other  instru- 
ment, directed  by  the  proctor  employed  in  Doctors'  Commons  to 
he  executed,  and  the  same  being  so  executed,  he  is  to  transmit  the 
same  to  the  treasurer  or  to  the  paymaster  of  his  majesty's  navy, 
London;  and  if  the  person  applying  for  such  probate  of  will,  shall 
be  and  reside  at  a  distance  from  the  place  where  wages,  prize-mo- 
ney, or  other  allowances  of  money  due  to  the  deceased  are  payable, 
he  is  to  specify  and  describe  the  receiver  general  of  the  land  tax, 
collector  of  the  customs,  collector  of  the  excise,  or  clerk  of  the 
cheque,  who  may  be  most  convenient  or  nearest  to  the  person  ap- 
plying for*such  probate;  and  the  said  treasurer,  paymaster,  or  in- 
spector, shall,  immediately  upon  receipt  thereof,  send  the  said  pre- 
vious commission  or  requisition,  or  other  legal  instrument,  executed 
by  the  person  applying  for  the  probate  as  aforesaid,  to  the  aforesaid 
proctor  in  Doctors''  Commons,  who,  in  pursuance  thereof,  is  forth- 
with to  sue  out  and  procure  such  probate. 

And  if  any  proctor  or  officer  of  the  ecclesiastical  court,  shall 
take  more  for  his  charges  than  the  sums  by  the  act  directed  to  be 
taken  in  the  different  events  therein  specified,  he  shall  forfeit  fifty 
pounds;  or  if  he  shall  be  aiding  or  assisting  in  procuring  probate  of 
a  will,  or  letters  of  administration,  for  the  purpose  of  enabling  any 
person  to  receive  such  wages,  prize-money,  or  allowance  of  money, 
otherwise  than  in  the  manner  prescribed  by  these  acts,  such  proc- 
tor or  other  officer  shall  forfeit  five  hundred  pounds,  and  for  ever  af- 
ter be  incapable  of  acting  in  any  capacity  in  any  ecclesiastical  court 
in  Great  Britain. 


[65]  Sect.  VIII. 

Of  the  probate  under  special  circumstances. 

If  the  executor  be  infirm,  or  live  at  a  distance,  it  is  usual  to  grant 
a  commission  or  requisition  to  the  archbishop,  or  bishop,  in  Eng- 
land or  Ireland  (as  the  case  may  be),  or  if  in  Scotland,  the  West 
Indies,  or  other  foreign  parts,  to  the  magistrates  or  other  compe- 
tent authority,  to  administer  the  oath  to  be  taken  previous  to  grant- 
ing probate  of  the  will  («).  Otherwise  if  the  executor  do  not  with- 
in a  reasonable  time  appear  voluntary,  he  may,  as  I  have  already 
mentioned,  pursuant  to  the  statute  21    //.  S.   c.   5.  (/;)  be  cited  by 

(a)  Vide  4  Burn.  Eccl.  L.  208.  (b)  Supiv  41. 


65  OF  THE  PROBATE  UNDER  [BOOK  K. 

the  ordinary  ex  officio  to  prove  or  refuse  the  testament.  In  case 
of  non-appearance  on  the  process  he  may  he  excommunicated,  and 
the  goods  of  the  deceased  sequestered  until  the  probate  (c);  or  ad- 
ministration with  the  will  annexed  may  be  granted,  in  pain  of  his 
contumacy,  provided  an  intimation  to  that  effect  be  contained  in 
the  process. 

But  the  practice  of  issuing  such  citations  is  now  become  obso- 
lete, unless  at  the  suit  of  the  parties  interested  :  if,  however,  the 
[6G]  executor  act,  and  neglect  to  take  probate  within  six  months 
after  the  death  of  the  testator  (d),  by  the  above-mentioned  statute 
of  37  G.   3.  c.    90.,  he  incurs  the  penalty  of  fifty  pounds. 

On  the  other  hand,  the  ordinary  is  bound  to  grant  probate  of 
the  will :  and  if  the  executor  accept  the  office,  and  claim  the  pro- 
bate, in  case  of  the  ordinary's  refusal  to  grant  it,  a  writ  of  man- 
damus may  issue  from  the  court  of  King's  Bench  to  compel  him 
(e)  :  for  although  the  spiritual  court  is  to  determine  whether  there 
be  a  will  or  not,  yet,  if  there  bs  a  will,  the  executor  has  a  temporal 
right,  nor  shall  any  terms  be  imposed  on  him  except  such  as  the 
will  prescribes  {/).  But  if  the  will  be  litigated,  the  bishop  may, 
in  his  return  to  the  writ,  state  that  a  suit  is  depending  before  him 
in  regard  to  the  same,  and  not  yet  detercnined.  And  such  return 
will  be  sufficient  (g). 

This  jurisdiction  the  metropolitan  or  ordinary  may  exercise 
either  himself,  or  by  his  official;  for  it  is  merely  a  ministerial  act, 
and  concerns  him  not  in  his  spiritual  capacity  (h). 

The  power  of  granting  probates  is  not  local,  but  is  annexed  to 
the  person  of  the  archbishop  or  bishop;  and  therefore  a  bishop,  or 
the  commissary  of  a  bishop,  while  absent  from  his  diocese,  may 
[67]  grant  probate  of  wills  respecting  property  within  the  same  ; 
or  if  an  archbishop  or  bishop  of  a  province  or  see  in  Ireland  hap- 
pen to  be  in  England,  he  may  grant  probate  of  wills  relative  to 
effects  within  his  province  or  diocese  (i). 

If  the  see  be  vacant,  or  in  case  of  the  suspension  of  the  bishop 
or  archbishop,  the  dean  and  chapter  are  to  grant  the  probate  (k). 

The  proving  of  a  bishop's  will,  although  he  left  goods  only  with- 
in his  own  jurisdiction,  belongs  to  the  archbishop  (/). 

If  there  be  several  executors,  and  one  take  probate,  he  takes  it 
•with  a  reservation  to  the  rest.  -H  another  apply  for  that  purpose, 
an  engrossment  of  the  original  will  is  to  be  annexed  to  the  second 
probate  in  the  same  manner  as  to  the  first,  and  in  the  second  grant 
the  first  grant  is  to  be  recited.  And  so  of  the  rest.  And  this  is 
styled  a  double  probate  (?//). 

0)  Vide  4  r.urn.  Eccl.  I..  201.  Canterbury  v.  House,  Cowp.  140. 

(d)  Supr.  43.                                           .  (/)  3  liac.  Abr.  39.    11  Via.  Abr.  78. 

(c)  4  Burn.  Keel.  L.  204,  Cro.  Cur.  53. 

(/)  Rex  v.  Raines,  IA.  Raym.  361.  (/»•)  3  liac.  Abr.  39.     Roll.  Abr.  908. 

Marriott  v.  Marriott,  Stra.  672.  1 1  Yin.  Abr.  74,  75.  77.  Young-  v.  Case, 

(g)  Sir    Riehd.   Raine's    Case,    Lord  Lulw.  30. 

Raym.  262.     Rex  v.  "Hay,  BmT.  2295.  (/)    11  Via.  Abr.  74.     4  Inst.  335 

4  Burn.  Eccl  Law,  205.  Supr.  53. 

h)  3Bae.'Abr.    S9'.      \.rchl»ishop  of  (m)  4  Burn.  Eccl.  L.  201 


CHAP.  II.]  SPECIAL  CIRCUMSTANCES.  f>7 

Where  several  executors  are  appointed,  as  formerly  mentioned 
(«),  with  separate  and  distinct  powers,  yet,  as  there  is  hut  one  will, 
one  prohate  shall  he  sufficient  (o). 

[oS]  Where  prohate  of  the  will  of  a  married  woman  is  granted 
to  her  executor,  if  he  he  not  her  husband,  it  is  limited  to  the  pro- 
perty, over  which  she  had  a  disposing  power  :  and  the  instrument 
from  which  such  power  is  derived  must  he  produced  ;  unless  the 
husband,  cither  id  person  or  by  proxy,  consent  to  a  general  pro- 
bale's  being  granted  to  her  executor. 

If  a  will  be  limited  to  any  specific  effe'ets  of  a  testator,  the  pro- 
bate shall  also  be  limited,  and  an  administration  cxterorum 
granted. 

The  interest  vested  by  the  will  of  the  deceased  in  the  executor 
may,  if  he  take  out  probate,  be  continued  and  kept  alive  by  the 
will  of  the  same  executor,  so  that  the  executor  of  A.'s  executor  is 
to  all  intents  and  purposes  the  executor  and  representative  of  A. 
himself  (/?),  and  may  be  directly  so  named  in  legal  proceedings  (q). 
For  the  power  of  an  executor  is  founded  on  the  special  confidence, 
and  actual  appointment  of  the  deceased.  Such  executor,  therefore, 
may  transmit  that  power  to  another  in  whom  he  has  equal  confi- 
dence. And,  so  long  as  the  chain  of  representation  is  unbroken  by 
any  intestacy,  the  ultimate  executor  is  the  representative  of  every 
preceding  testator,  in  however  numerous  a  succession.  Nor  is  a 
[69]  new  probate  of  the  original  will  in  any  of  the  subsequent  stages 
requisite  (r). 

If  there  be  several  co-executors,  and  they  all  prove,  the  interest 
goes  only  to  the  executor  of  the  last  survivor  ;  and  although  such 
survivor  refused  to  prove  in  the  lifetime  of  the  other  executors,  he 
may  take  out  prohate  after  their  death;  and  in  that  case  the  interest 
will  be  equally  transmitted  to  his  executor.  But  if  such  surviving 
executor  renounce  after  their  death,  administration  shall  be  granted, 
and  then  his  executor  will  have  no  title  to  the  original  executor- 
ship (s). 

If  A.  appoint  B.  and  C.  his  executors,  and  die,  and  B.  make  J, 
S.  his  executor,  and  die,  and  afterwards  C.  dies  intestate;  the  ex- 
ecutor of  B.  shall  not  be  the  executor  of  A.,  because  the  executor- 
ship vested  solely  in  C.  as  survivor;  and  as  he  died  intestate,  ad- 
ministration must  be  taken  out  to  A.  (/). 

Wills  which  concern  the  personal  estate  only,  are  subject  to  the 
jurisdiction  of  the  ecclesiastical  courts  (u). 

Where  the  will  respects  lands  merely,  the  spiritual  court  ought 

(n)  Vid.  supr.  36.  0)  Wankford  v.  Waukibrd,   1  Salk. 

(o)  3  Bac.  Abr.  30.     Off.  Ex.  13.  309. 

(/))  2  Bl.  Com.  506.    Com.  1%.  Ad-         (s)  11  Vin.  Abr.  68,  69.  111.    Wank- 

mon.  B.  6.     11  Vin.  Abr.   63.  90.  107.  ford  v.  Wankford,  1  Salk.  307.     House 

nil'.  I'.x.  Suppl.  1-10.   Plow- 525.  Shcp.  v.  Lord  Pelre,  311.     Paw  let  v.  Freak, 

Touch.  161,  Hard.  111.      Com.  Dig.  Admou.  B.  1. 

(7)  Com.  Dig.  Admon.  G.l.  Powley         (I)  11  Vin.  Abr.  88.     Off.  Ex.  101. 
and  Sear'*  Case,  Leon.  275.  (w)  4  Burn.  Eccl   L    195, 


70  OF  THE  PROBATE  UNDER  [BOOK  I. 

[70]  not  to  grant  probate  ;  and  if  there  be  a  suit  to  compel  it,  a 
prohibition  will  lie  (v). 

But  when  the  will  is  of  a  mixed  nature,  that  is,  relates  both  to 
real  and  personal  property,  the  probate  of  it  shall  be  entire  in  the 
spiritual  court  (10). 

A  will  may  be  proved  with  a  reservation  as  to  a  particular  le- 
gacy. And  in  such  case,,  if  there  be  a  decree  against  such  legacy 
as  a  forgery  or  interpolation  in  the  ecclesiastical  court,  the  will 
shall  be  engrossed  without  it,  and  so  annexed  to  the  probate  (x). 

The  will  of  a  party  who  has  been  long  absent  from  this  country 
may  be  proved,  if  he  be  generally  understood  to  be  dead,  and.  the 
executor  will*  take  upon  himself  to  swear  that  he  believes  him  to 
be  so  {y). 

If  the  executor  named  in  the  will  be  unknown  or  concealed,  ad- 
ministration may,  after  due  process,  be  granted  till  he  appear  and 
claim  the  probate  (z). 

[71]  If  the  will  be  lost,  two  witnesses,  superior  to  all  exception, 
who  read  the  will,  prove  its  existence  after  the  testator's  death, 
remember  its  contents,  and  depose  to  its  tenor,  are  sufficient  to  es- 
tablish it  (a). 

So,  where  the  testator  had  delivered  his  will  to  A.  to  keep  for 
him,  and  four  years  afterwards  died,  when  the  will  was  found 
gnawn  to  pieces  by  rats,  and  in  part  illegible;  on  proof  of  the  sub- 
stance of  the  will  by  the  joining  of  the  pieces,  and  the  memory 
of  witnesses,  the  probate  was  granted  (b). 

A  will  is  to  be  construed  by  the  court  without  regard  to  the  in- 
structions given  for  preparing  it  (c). 

If  the  testator  resided  in  Scotland,  and  left  effects  there  and  in 
England,  the  will  is  proved  in  the  first  instance  in  the  court  of 
great  sessions  in  Scotland,  and  a  copy  duly  authenticated  being 
transmitted  hither,  it  is  proved  in  the  prerogative  court,  and  de- 
posited as  if  it  were  an  original  will. 

So  in  such  case,  if  the  testator  resided  in  Ireland,  the  will  is 
proved 'in  the  spiritual  court  of  that  country;  or  if  in  the  East  or 
West  Indies,  in  the  probate  court  there,  and  a  copy  transmitted, 
proved,  and  deposited  in  the  same  manrier. 

Where  the  testator  was  resident  in  England,  not  merely  as  a  visit- 
or, and  has  left  property  in  the  plantations,  the,  judge  of  probate 
[72]  in  the  plantations  is  bound  by  a  grant  of  probate  by  the  pre- 
rogative court  here,  and- ought  to  make  a  similar  grant  to  such 
grantee  (d). 

(v)  4  Burn.  Eccl.  L.  195.     Netter  v.  6.  s.  13. 

Brett,  Cro.   Car.  396.     Habergbam  v.  (z)  4  Burn.  Eccl.  L.  202.    Roll.  Abr. 

Vincent,  2  Yes.  jun.  230.  9o7.  and  vide  infr. 

(w)  Netter  v.  Brett,  Cro.   Car.396'.  («)  4  Bu*n.  Eccl.  L.  209. 

11  V.in.  Abr.   57.  60.  117.     Partridge's  (b)  Off.  Ex.  Supp.  215.    7  Bac.  Abi. 

Case,  2  Salk.  552.  3  Salk.  J  J.  350.  in  note. 

(x)  4  Mum.  Eccl.  L.  209.      l'lumcv.  (c)  Murray  v.  Jones,  2  Ves.  &  Bea. 

Beale,  1  P.  Wins.  388.  318. 

(y)  Off.  Ex.  Supp.  63.     Swinb.  Part  (r/)  Burn  Y.Cole,  Anib.  115 


CHAP.  II.]  SPECIAL  CIRCUMSTANCES.  72 

If  a  will  be  made  in  a  foreign  country,  disposing  of  goods  in 
England,  it  must  be  proved  berc  (e).(l)  But  if  tbe  effects  were  al_ 
abroad,  and  tbe  will  be  proved  according  to  tbe  custom  of  tbe  coun- 
try where  the  testator  died,  it  is  sufficient:  And  tbe  executor  may 
plead  such  matter  to  a  bill  filed  against  him  by  the  administrator, 
for  an  account  of  the  deceased's  personal  estate  (/). 

If  a  will  be  in  a  foreign  language,  the  probate  is  granted  of  a 
translation  of  the  same  by  a  notary  public. 


Sect.  IX. 
Of  caveats,  revocation  of  probates,  and  appeals. 

When  the  will  is  opposed,  it  is  the  practice  to  enter  a  caveat  in 
the  spiritual  court  to  prevent  the  probate.  And  it  is  said  that,  by 
the  rules  of  that  court,  the  caveat  shall  stand  in  force  for  three 
months,  and  that,  while  it  is  pending,  probate  cannot  be  granted  ; 
[73]  but  whether  the  law  recognizes  a  caveat  and  allows  it  so  to 
operate,  or  whether  it  does  not  regard  it  as  a  mere  cautionary  act 
by  a  stranger  to  prevent  the  ordinary  from  committing  a  wrong,  is 
a  point  on  which  the  judges  of  the  temporal  courts  have  differed  (g). 

Probate  of  a  will  is  suspended  by  appeal,  (2)  but  it  cannot  be 
stayed  at  the  suit  of  a  creditor,  till  a  commission  of  appraisement 
issued  be  returned  (A);  for  by  the  statute  21  H.  8.  c.  5.  the  pro- 
bate is  to  be  granted  with  convenient  speed,  without  any  frustra- 
tory  delay. 

If  a  probate  have  been  granted  by  the  wrong  jurisdiction,  it  is 
cause  of  reversal,  or  nullity,  according  to  the  distinction  before 
stated  (i). 

So  if  the  will  be  fraudulently  proved,  either  in  the  common  form, 
that  is  to  say,  by  the  oath  of  the  executor,  or  more  solemnly  by  tbe 
examination  of  witnesses,  on  such  fraud  being  shewn,  the  spiritual 
court  will  revoke  the  probate.  So  also  it  may  be  vacated  on  proof 
of  a  revocation  of  the  will  on  which  it  was  granted,  or  of  the  mak- 
ing of  one  subsequent  (A-)-  And  where  probate  has  been  granted 
of  the  will  of  a  person  supposed  to  be  deceased*  upon  application 
to  the  executor  by  motion,  the  judge  will  by  interlocutory  decree 
revoke  tbe  probate  so  granted  in  error,  and  upon  petition  of  the 
party  will  decree  the  will  and  cancelled  probate  to  be  delivered 
out  to  him  (/). 

(e)  11  Vin.  Abr.  58.     Vid.  infr.  L.  230.     Rex  v.  Bettesworth,  Stra.  857, 

(/)  11  Vin.  Abr.  59.  69.    Jauncy  v.         (*)  Off.  Ex.48.     Vid.  supr.  53. 
Sealey,  1  Vern.  397.  (/••)  Ibid.  48. 

(g)  3  Bac.  Abr.  41.     Offley  v.  Best,         (/)   In  re  Charles   James  Napier,  I 

1  Lev.  186.  Pliill.  Rep.  83. 

(h)  11  Vin.  Abr.  63.     4  Burn.  Eccl. 


(1)  See  Ante,  page  2,  note  (2).     See  Viofton  v.  Jlsln/,  4  Grecnl.   Rep.  134, 
Trecoihick  v.  Austin,  '1  Mason's  Rep.  16. 

(2)  4  Mason's  Rep.  25. 


74  OF  APPEALS.  [BOOK  1. 

An  appeal  (m)  in  regard  to  probates,  by  statute  24  //.  8.  c.  12, 
[74]  lies  from  the  court  of  the  archdeacon,  or  his  official  (if  the 
matter  be  there  commenced),  to  the  bishop  of  the  diocese;  and  by 
virtue  of  the  same  statute,  from  the  bishop  diocesan,  or  his  com- 
missary, to  the  archbishop  of  the  province,  within  fifteen  days 
next  after  sentence.  When  the  cause  is  commenced  before  the 
archdeacon  of  the  archbishop,  or  his  commissary,  by  the  same 
statute  there  may  be  an  appeal  within  the  same  period  to  the  court 
of  arches  or  audience  of  the  archbishop;  and  from  the  court  of 
arches  or  audience,  within  fifteen  days  next  after  sentence  given 
to  the  archbishop  himself;  and  incase  the  king  himself  be  a  party 
in  such  suits,  the  appeal  shall.be,  within  fifteen  days  next  after 
sentence  given  to  all  the  bishops  of  the  realm,  in  the  upper  house 
of  convocation  assembled.  By  that  statute,  and  also  by  statute 
25  H.  S.  c.  19,  appeals  to  the  pope  are  prohibited,  and  by  the 
latter  statute  are  given  from  the  archbishop's  court  to  the  king  in 
chancery,  where  a  commission  shall  be  awarded  under  the  great 
seal,  fo  certain  persons  to  be  named  by  the  king  for  the  determina- 
tion of  the  appeals;  and  those  commissioners  are  called  delegates, 
inasmuch  as  they  are  delegated  by  the  king's  commission.  And 
further,  although  this  last  cited  statute  declares  the  sentence  of  the 
delegates  definitive,  the  king,  on  complaint,  to  him  made,  may  grant 
a  commission  of  review  to  revise  the  sentence  of  the  delegates  («); 
because  the  pope,  as  supreme  head  by  the  cannon  law,  used  to  grant 
[75]  such  commission;  and  such  authority,  as  the  pope  heretofore 
exercised,  is  now  annexed  to  the  crown  by  statute  26'  //.  8.  c.  !. 
and  1  Eliz.  c.  1.  But  it  is  not  matter  of  right,  which  the  sub- 
ject may  demand  ex  debitojustilix,  but  merely  a  matter  of  favour, 
which  is  never  granted  but  under  special  circumstances  (o). 
•  Before  revocation  of  a  probate,  the  court  will  not  grant  a  new 
one  (p). 

Where  probate  granted  by  the  special  court  is  affirmed  on  an 
appeal  to  the  arches  or  delegates,  the  usage  is  to  send  the  cause 
back.  But  when  the  first  sentence  is  reversed,  the  court  below 
shall  be  ousted  of  its  jurisdiction,  and  the  court  which  reverses  it 
shall  grant  probate  de  novo  {q). 


Sect.  X. 

The   effect  of  a  probate. — Loss   of  the  same — What  is  evi- 
dence of  probate. — Effect  of  its  revocation. 

The  probate  thus  passed,  although   it  docs  not  confer,  yet  au- 
thenticates the  right  of  the  executor,  for  courts  of  law  or  equity 

(w)  Com.  Dig.  Prerogative.  (/;)  4  Hum.  Eccl.  L.   193.      IJains  v. 

(«)  Off".  Ex.  Suppl.  127.  129.     3  El.  Com.  ofDioc.  of  Caiferb.,  7  Mod.  146. 

Com.  64— 67.  {q)  11  Vin.  Ahr.  76.     Com.  Dig.  Ad 

(o)  3  Bl.Com.  67.  Matthew;,  v.  War-  mon.  B.  2.     2  lioll.  Abr.  233. 
ner,  4  Vcs.  jun.  205. 


CHAP.  II.]  EFFECT  OF  A  PROBATE.  75 

take  no  judicial  notice  of  any  executor  until  he  has  proved  the  will, 
Hut  it  shall-  have  relation  to  the  time  of  the  testator's  death  (r). 

[76]  If  the  will  he  proved  in  common  form,  it  may  at  any  time 
within  thirty  years  be  disputed;  if  in  the  more  formal  mode,  and 
all  persons  interested  are  made  parties  to  the  suit,  and  there  be  no 
proceedings  within  the  time  limited  for  appeals,  it  is  liable  to  no 
future  controversy  (S). 

So  long  as  the  probate  remains  unrevoked,  the  seal  of  the  ordi- 
nary cannot  be  contradicted,  for  the  temporal  court  cannot  pass  a 
judgment  respecting  a  will  in  opposition  to  that  of  the  ecclesiasti- 
cal court  (t);  and  therefore  if  a  probate  under  seal  be  shewn,  evi- 
dence will  not  be  admitted  that  the  will  was  forged,  or  that  the 
execution  of  it  was  procured  by  fraud,  or  that  the  testator  was  non 
compos  mentis,  or  that  another  person  was  executor;  for  these  are 
points  which  are  exclusively  of  spiritual  cognizance;  but  it  may  be 
shewn  that  the  seal  was  forged,  or  that  there  were  bona  notabilia, 
for  such  evidence  is  no  contradiction  to  the  seal,  but  admits,  and 
avoids  it  (u). 

Such  then  being  the  nature  of  a  probate,  inasmuch  as  it  is  a  ju- 
dicial act  of  the  court  having  competent  authority;  and  is  conclu- 
sive till  it  be  repealed,  and  a  court  of  common  law  cannot  admit 
evidence  to  impeach  it;  it  was  determined  in  a  recent  case,  in  oppo- 
[77]  sition  to  some  old  decisions  (v),  that  payment  of  money  to  an 
executor  who  had  obtained  probate  of  a  forged  will,  was  a  discharge 
to  the  debtor  of  the  intestate,  although  the  probate  were  afterwards 
revoked,  and  administration  granted  to  the  next  of  kin  (iv).(l) 

And  on  the  same  principle  it  is  holden,  that  pending  a  suit  in  the 
spiritual  court  respecting  the  validity  of  a  will,  an  indictment  for 
forging  it  ought  not  to  be  tried;  and  it  is  the  practice  to  postpone 
the  trial  till  that  court  has  given  sentence  (x). 

But  a  payment  of  money  under  probate  of  a  supposed  will  of  a 
living  person  would  be  void,  because  in  such  case  the  ecclesiastical 
court  has  no  jurisdiction:  and  the  probate  can  have  no  effect.  (2) 
The  power  of  the  ordinary  extends  only  to  the  proving  of  wills  of 
persons  deceased  (y). 

Where  the  probate  is  lost,  the  spiritual  court  never  grants  a  se- 
cond, but  merely  an  exemplification  of  the  probate  from  its  own 

0)  11  Vin.  Abr.  205.     Off.  Ex.  49.  (n)  Marriott  v.  Marriott,   Stra.  671, 

Henslor's  case,    9  Co.  38.      Comber's  672.     4  Burn.  Eccl.  L.  196. 

case,  1  P.  Wins.  767.     Hudson  v.  Hud-  .(v)  1  Roll.   Abr.  919.     Anon.  Com. 

son,  1  Atk.  461.     Ca.  in  Ch.  2  pi.  56.  Rep.  152.     Vid.  11  Vin.  Abr.  89. 

Smith  v.  Milles,  1  T.  Rep.  480.     Rex  (w)  Allen  v.  Dundas,  3  Term  Rep. 

v.  Netherseal,  4  T.  Rep.  260.  125. 

(s)  4  Burn.  Eccl.  L.  207.     Godolph.  '      (x)  3  Bac.  Abr.  34.     Rex  v.  Vincent, 

G2.  1   Stra.  481.     Rex  v.  Rhodes,  2  Stra. 

(/)  House  v.  Lord  Petre,  1  Salk.  311.  703. 

Griffith*!  v.  Hamilton,  12  Ves.  jun.  298.  (y)  Allen  v.  Dundas,  3  Term   Rep. 

See  also  1  P.  Wms.  388.  548.  in  note.  130. 

(1)  15  Scrs.  &  Rawle,  42.  (2)  15  Sen;.   &  Rawle,  42,  contra 


77  EVIDENCE  OF  PROBATE.  [BOOK  I. 

records,  and  such  exemplification  is  evidence  of  the  will  having 
been  proved  (r). 

The  copy  of  the  probate  of  a  will  of  a  personal  property  is  evi- 
[7S]dence,  inasmuch  as  the  probate  is  an  original  taken  by  authori- 
ty, and  of  a  public  nature  (a). 

The  register's  book,  or,  as  it  is  sometimes  styled,  the  ledger- 
book,  in  the  spiritual  court,  is  evidence  thatlhere  was  such  will, 
in  case  of  its  being  lost  (b). 

A  copy  of  the  ledger-book  seems  also  to  be  sufficient  proof  for 
the  same  purpose;  since  such  book  is  a  roll  of  the  court,  and 
Iherefore  a  copy  of  it  is  not  a  copy  of  a  copy,  as  hath  been  errone- 
ously supposed  (c). 

If  issue  be  taken  on  a  probate  of  a  will,  it  shall  be  tried  by  a 

The  probate,  or,  as  it  is  sometimes  called,  the  letters  testament- 
ary, may  be  revoked  either  on  a  suit  by  citation,  or  on  appeal  to 
reverse  a  sentence  by  which  they  are  granted;  and,  in  case  of  revo- 
cation, all  the  intermediate  acts  of  the  executors  shall  be  void.(l^) 

But  where  a  widow  possessed  herself  of  the  personal  estate  as 
executrix  under  a  revoked  will,  and  paid  debts  and  legacies  with- 
[79]  out  notice  of  the  revocation,  she  was  allowed  those  payments 
in  equity;  but  leases  which  she  had  granted  were  ordered  to  be  set 
aside  (e). 

Where  B.,  a  married  woman,  who  was  the  sole  executrix  of  her 
late  husband  A  ,  made  a  will  merely  executing  a  power  given  to 
her  by  a  marriage  settlement,  but  appointed  C.  executrix  generally , 
and  the  ecclesiastical  court  granted  probate  of  her  will  in  the  gene- 
ral form;  it  was  held,  that  the  general  probate  of  the  will  of  B. 
transmitted  to  C.  the  representation  of  A.  without  an  administra- 
tion be  bonis  own  {/). 

(z)  Sheplierdv.  Shorthose,  Stra.412.  (c)  Law  of  Ni.  Pri.  246. 

4  Burn.  Eccl.  L.  219.  (d)  Off'.  Ex.  Suppl.  9.  Case  of  Abbot 

(a)  3  Salk.  154.     Hoe  v.  Nathorpe,  of  Strata,  9  Co.  Rep.  31. 

I.d.  Raym.  154.     Law  of  Ni.  Pri.  245,  (e)  3  Bac.  Abr.  50.  1  Chan.  Ca.  126. 

246.     4  Burn.  Eccl.  L.  219,  (/)    Barr  v.  Carter,    2  Cox's  Rep. 

(6)  4  Burn.  Eccl.  L.  218.     St.  Legar  429. 
v.  Adams,  Lord  Raym.  731. 

(1)  Contra,  Appeal  of  R.  Peebles,  15  Serg.  &  Rawle,  39,  where  the  doctrine 
in  the  text  is  denied.  .See  Ford  v.  Gardner,  1  Hen.  &  Munf.  72,  as  to  the  right 
in  Virginia  of  any  one  having-  an  interest,  and  who  did  not  appear  to  contest  it 
before  the  ordinary,  to  impugn,  within  seven  years,  the  validity  of  a  probate  by 
bill  in  equity.  Appearance  ami  contesting  the  probate  will  not  bar  the  right  to 
file  a  bill,  if  there  be  any  ground  of  fraud  unknown  to  the  party  at  the  time  of 
the  probate*  Rid, 


C1IA1'.   III.  |       OF  GRANTING   ADMINISTRATION.  80 

[SO]   CHAP.    III. 

OP    THE    APPOINTMENT    OF    ADMINISTRATORS. 


Sect.  I, 

Of  general  administrations, — origin  thereof, — who  entitled. — 
Of  consanguinity. 

In  case  a  party  makes  no  testamentary  disposition  of  his  person- 
al property,  he  is  said  to  die  intestate  (a)  ;  the  consequences  of 
which  are  now  to  be  considered. 

In  ancient  times  the  king  was,  on  such  event,  entitled  to  take 
possession,  by  his  officers,  of  the  effects,  as  the  parens  patrise,  and 
general  trustee  of  the  kingdom,  in  order  that  they  might  be  applied 
in  the  burial  of  the  deceased,  in  the  payment  of  his  debts,  and  in  a 
provision  for  his  wife  and  children  ;  or  if  none,  then  for  his  next 
of  kin  (b).  This  prerogative  was  most  probably  exercised  in  the 
county  court  ;  it  was  also  delegated  as  a  franchise  to  many  rords  of 
manors  and  others,  who  have  to  this  day  a  prescriptive  right  to 
grant  administration  to  their  intestate  tenants  and  suitors  in  their 
own  courts  baron  and  other  courts,  or  as  we  have  seen  (c),  to  grant- 
[81]  probate  of  their  wills,  in  case  they  have  made  any  disposi- 
tion {d). 

This  power  was  afterwards  vested  by  the  crown  in  the  prelates, 
who,  on  a  notion  of  their  superior  sanctity,  were,  by  the  supersti- 
tion of  the  times,  conceived  capable  of  disposing  of  the  property 
most  for  the  benefit  of  the  deceased's  soul  (e).  The  effects  were 
therefore  committed  to  the  ordinary,  and  he  might  seize  and  keep 
them  without  wasting,  and  after  the  paries  rationabiles,  or  two 
thirds  belonging  to  the  wife  and  children  were  deducted  (f), 
might  give,  alien,  or  sell  the  remainder  at  his  pleasure,  and  dis- 
pose of  the  money  in  pious  uses.  If  he  did  otherwise,  he  violated 
the  trust  reposed  in  him  as  the  king's  almoner  within  his  dio- 
cese (g).  The  jurisdiction  of  proving  wills  of  course  fell  into 
the  same  channel,  since  it  was  thought  reasonable  that  they  should 
be  proved  to  the  satisfaction  of  him  whose  right  of  distribution 
they  effectually  superseded  (h). 

But  his  conduct  did  not  justify  the  presumption  which  had  been 
thus  formed  in  his  favour.     The  trust  so  confided  to  him,  he  did 

(a)  2  Bl.  Com.  494.  9  Co.  38  b. 

(b)  2  Bl.  Com.  494.     9  Co.  38  b.  (/)  2  Bl.  Com.  491.   495.  516.    2 

(c)  Vid  supr.  50.  Inst.  33. 

(d)  2  Bl.  Com.  494.     9  Co.  37  b.  (#)  Plowd.  277. 
(<-)  Perkins,  sect.  486,     Plowd.  277.         (A)  2  Bl.  Com.  494, 

S 


82  OF  GRANTING  ADMINISTRATION.  [BOOK  II. 

not  very  faithfully  execute  {i).  He  converted  to  his  own  use,  un- 
der the  name  of  'church  and  poor,  the  whole  of  such  residue, 
[S2]  without  even  paying  the  deceased's  debts.  To  redress  such  pal- 
pable injustice,  the  statute  of  Westminster  2.  or  the  13  E.  1.  c.  19. 
was  passed;  by  which  it  is  enacted,  that  the  ordinary  is  bound  to 
pay  the  debts  of  the  intestate,  so  far  as  his  goods  will  extend,  in 
the  same  manner  as  executors  are  bound,  in  case  the  deceased  has 
left  a  will ;  an  use,  as  Mr.  Justice  Blackstone  styles  it,  more 
truly  pious  than  any  requiem,  or  mass  for  his  soul  (k). 

Although  the  ordinary  were  now  become  liable  to  the  intestate's 
creditors,  yet  the  residue,  after  payment  of  debts,  continued  in  his 
hands,  to  be  applied  to  whatever  purposes  his  conscience  might 
approve.  But  as  he  was  not  sufficiently  scrupulous  to  prevent  the 
perpetual  misapplication  of  the  fund,  the  legislature  again  inter- 
posed, in  order  to  divest  him  and  his  dependents  of  the  adminis- 
tration. The  stat.  31  E.  3.  c.  11.  therefore  provides,  that  in  case  of 
intestacy,  the  ordinary  shall  depute  the  nearest  and  most  lawful 
friends  of  the  deceased  to  administer  his  goods,  and  they  are  there- 
by put  on  the  same  footing  in  regard  to  suits,  and  to  accounting,  as 
executors  appointed  by  will  (/). 

Such  is  the  origin  of  administrators.  They  are  the  officers  of 
the  ordinary,  appointed  by  him  in  pursuance  of  the  statute,  which 
selects  the  next  and  most  lawful  friends  of  the  intestate.  But  the 
[83]stat.  21  H.  8.  c.  5.  (1*)  allows  the  ecclesiastical  judge  a  little  more 
latitude,  and  empowers  him  to  grant  administration  either  to  the 
widow  or  next  of  kin,  or  to  both  of  them,  at  his  own  discretion; 
and  where  two  or  more  persons  are  in  the  same  degree  of  kin- 
dred, in  case  they  apply,  gives  him  his  election  to  accept  which- 
ever he  pleases.  (2) 

(i)  Ibid.  491.  495.  (/)  2  Bl.  Com.  495,  496.  3  Bac.  Abr. 

(h)  Ibid.  495.  54.     Raym.  498. 

•  (1)  That  part  of  this  statute  only  is  in  foree  (in  Pennsylvania)  which  relates 
to  the  persons  to  whom  administration  is  granted.  Report  of  the  Judges,  3  Binn. 
618.   Roberts'  Dig.  Brit.'  Statutes,  254. 

(2)  In  Pennsylvania,  by  the  provisions  of  the  first  section  of  the  Act  of  19th 
April  1794,  entitled  "  An  act  directing  the  descent  of  intestates'  real  estates,  and 
distribution  of  their  personal  estates,  and  for  other  purposes  therein  mentioned," 
(Purd.  Dig.  372,  3  Dall.  Laws,  521,  3  Sm.  Laws,  143,)  "  The  Register  for  the 
probate  of  wills,  and  granting  letters  of  administration  for  the  city  and  county  of 
Philadelphia,  and  of  the  several  counties  of  this  state,  respectively,  and  their  de- 
puties, having  power  to  grant  letters  of  administration  of  the  goods  and  chattels  of 
persons  dying  intestate,  within  tbis  commonwealth,  shall,  upon  their  granting  let- 
ters of  administration,  take  bonds  with  two  or  more  sufficient  sureties  (respect  being 
had  to  the  value  of  the  estate)  in  the  name  of  the  register,  [to  be  taken  in  the  name 
of  The  Commonwealth,  by  the  11th  sect  of  the  act  of  4th  April,  1797,  Purd.  Dig. 
382,]  with  the  conditions  in  manner  and  form  following,  viz.  'The  condition  of  this 
'  obligation  is  such,  that  if  the  within  bounden  A.  B.  administrator  of  all  and  singular 
'  the  goods,  chattels  and  credits  of  C.  D.  deceased,  do  make,  or  cause  to  be  made  a 
*  true  and  perfect  inventory  of  all  and  singular  the  goods,  chattels  and  credits  of  the 
'  said  deceased,  which  have  or  shall  come  to  the  hands,  possession  or  knowledge 
1  of  him  the  said  A.  B.  or  into  the  hands  and  possession  of  any  other  person  or  per- 
'•  sons  for  him,  and  the  same  so  made,  do  exhibit  or  cause  to  be  exhibited,  into  the 


CHAP.   III.]       OF  GRANTING  ADMINISTRATION..  83 

Letters  of  administration,  then,  must  be  granted  by  the  ordinary 
to  such  persons,  as  the  statutes  31  E.  3.  &21  //.  8.  point  out  (m); 
that  is,  according;  to  the  former  statute,  to  the  next  and  most  law- 
ful friends  of  the  intestate;  according  to  the  latter,  to  the  widow, 
and  next  of  kin,  or  both,  or  either  of  them. 

What  parties  fall  within  the  first,  description,  it  was  the  province 
of  the  courts  of  common  law  to  determine  (?i);  and  they  have  in- 
terpreted such  friends  to  mean  in  the  first  place  the  husband,  if  he 
were  not  entitled  at  common  law,  and  secondly,  the  next  of  blood, 
under  no  legal  disabilities  (o). 

First,  the  ordinary  is  bound  to  grant  administration  of  the  ef- 
fects of  the  wife  to  the  husband  (p). 

Various  opinions  have  indeed  been  held  with  regard  to  the  hus- 
band's title  to  administer.  Some  have  maintained  that  he  has  no 
[84]  such  exclusive  right,  either  at  common  law,  or  by  virtue  of  the 
statutes;  but  that  the  ordinary  may  refuse  the  administration  to 

(m)  2  Bl.  Com.  504.  (o)  2  Bl.  Com.  496.     9  Co.  39  b. 

(«)  3  Bac.  Abr.  54.  11  Yin.  Abr.  93.  (joj  11  Vin.  Abr.  86.  Blackborough 
Thomas  v.  Butler,  1  Ventr.  218.  v.  Davis,  1  P.  VVms.  44. 


'  register's  office  in  the  county  of ,  at  or  before  the day  of next 

*  ensuing,  and  the  same  goods,"  chattels  and  credits,  and  all  other  the  goods,  chat- 
<  tels  and  credits  of  the  said  deceased  at  the  time  of  his  death,  which  at  any  time 

*  after  shall  come  to  the  hands  or  possession  of  the  said  A.  B.  or  into  the  hands 

*  and  possession  of  any  other  person  or  persons,  for  him,  do  well  and  truly  admin- 
'  ister,  according  to  law;  and  further,  do  make  or  cause  to  be  made,  a  true  and 

.  'just  account  of  his  said  administration,  at  or  before  the day  of ,  and 

'  all  the  rest  and  residue  of  the  said  goods,  chattels  and  credits,  which  shall  be 
'  found  remaining  upon  the  said  administrator's  account,  the  same  being  first  exa- 
'  mined  and  allowed  of  by  the  orphan's  court  of  the  county,  where  the  said  ad- 
'  ministration  is  granted,  shall  deliver  and  pay  unto  such  person  or  persons  res- 
'  pectively,  as  the  said  orphan's  court,  by  their  decree  or  sentence,  pursuant  to 
'  the  true  intent  and  meaning  of  this  act,  shall  limit  and  appoint;  and  if  it  shall 
e  hereafter  appear  that  any  last  will  and  testament  was  made  by  the  said  deceased, 
'  and  the  executor  or  executors  therein  named  do  exhibit  the  same  into  the  said 
'  register's  office,  making  request  to  have  it  allowed  and  approved  accordingly,  if 
'  the  said  A.  B.  within  bounden,  being  thereunto  required,  do  render  and  deliver 
'  the  said  letters  of  administration,  approbation  of  such  testament  being  first  had 
'  and  made  in  the  said  register's  office,  then  this  obligation  to  be  void  and  of  none 

*  effect,  or  else  to  remain  in  full  force  and  virtue.'  Which  bonds  are  hereby  de- 
clared to  be  good  to  all  intents  and  purposes,  and  pleadable  in  any  courts  of  jus- 
tice; and  the  said  orphan's  court  in  the  respective  counties  shall  and  may,  and  are 
hereby  enabled  to  proceed  and  call  such  administrators  to  account,  for  and  touch- 
ing the  goods  of  any  person  dying  intestate,  and  upon  hearing  and  due  considera- 
tion thereof,  to  order  and  make  just  and  equal  distribution  of  what  remaineth 
clear,  after  all  debts  and  funeral  and  just  expenses  of  every  sort  first  allowed  and 
deducted,  amongst  the  wife  and  children,  or  children's  children,  if  any  such  be, 
or  otherwise  to  the  next  kindred  to  the  person  deceased,  in  equal  degree,  or  le- 
gally representing  their  stocks,  to  every  one  his  right,  according  to  the  rules  and 
limitations  hereafter  set  down,  and  the  same  distributions  to  decree  and  settle,  and 
to  compel  such  administrators  to  observe  and  pay  the  same  by  the-due  course  of 
the  laws  of  tjiis  commonwealth,  saving  to  every  person  or  persons,  supposing  him 
or  themselves  aggrieved,  their  right  to  appeal:  Provided,  That  the  administrators 
be  bound  to  furnish  the  inventory  within  one  month,  and  to  adjust  and  settle"  his 
accounts  within  one  year." 


84  OF  GRANTING  ADMINISTRATION.  [BOOK  II. 

him;  and  may  elect  to  grant  it  to  the  next  of  kin  of  the  wife  (q). 
By  others,  it  has  been  asserted,  that  he  is  entitled  under  the  equi- 
ty of  the  stat.  of  the  21  H.  8.  whereby  the  ordinary  is  directed  to 
grant  administration  of  the  husband's  effects  to  the  wife,  or  next  of 
kin,  or  to  either  (r).  By  a  third  class,  it  has  been  insisted,  that 
although  the  husband  have  not  been  expressly  named  in  the  stat. 
31  E.  3.  nor  does  he  answer  the  description  of  next  of  kin  to  the 
wife,  yet  he  is  included  under  the  denomination  of  the  next  and 
most  lawful  friend  of  the  intestate;  and  that  thus  he  supports  his 
claim,  not  on  the  common  law,  nor,  as  described  eo  nomine,  by 
the  statute,  but  as  comprehended  within  its  general  provision  (s). 
By  a  fourth,  it  is  alleged,  and  the  doctrine  is  recognised,  an  a  re- 
eent  case,  by  Lord  Loughborough,  C.  (t),  that  he  is  entitled  at 
common  law,  jure  mariti,  and  that  his  right  is  not  derived  from 
any  of  the  statutes,  but,  on  the  contrary,  is  supposed  by  them,  and 
exists  independently  of  them  all.  However,  to  speculate  on  these 
points  is  useless  to  the  present  purpose,  since  the  husband's  right 
[85]  to  administer,  on  whatever  foundation,  is  now  beyond  all 
question  established.  (1) 

The  stat.  29  Car.  2.  c.  3.  contains  a  clause,  that  the  statute  of 
distributions,  the  22&23  Car.  2.  c.  10.  hereafter  to  be  discussed, 
shall  not  prejudice  such  title  of  the  husband,  under  an  apprehension 
that  it  might  be  considered  to  be  thereby  affected.  And  though  a 
marriage  was  voidable  as  being  within  the  prohibited  degrees,  but 
not  declared  void  in  the  lifetime  of  the  parties,  the  marriage  is  val- 
id for  all  civil  purposes,  and  the  husband  is  entitled  as  a  civil  right 
to  administration  of  her  effects  (v). 

(q)  Johns  v.  Rowe,  Cro.  Car.  106.  v.  Gorges,  1  Ves.  jun.  49. 

(»•)  11  Vin.  Abr.  84.  in  note.  (t)  Watt  v.  Watt,  3  Ves.  jun.  246, 

(s)  Fawtry  v.  Fawtrv,    1  Salk.  36.  247.     Vid.  also  Com.  Dig.  Admon.   B. 

11  Vin.  Abr.  73.  84.  in  note.  116.  Black-  6.  282.     2  Bl.  Com.  515.    4  Co.  51  b. 

borough  v.    Davis,   1  P.  Wms.  44.     4  Roll.  Abr.  910.     4  Burn.  Eccl.  I,.  264. 

Burn.  Eccl.  Law,  235.    Vid.  Fettiplace  (v)  Elliott  v.  Gurr,  2  Phill.  Rep.  16. 

(1)  By  the  5th  section  of  the  Act  of  21st  March,  1772,  entitled  "An  Act  for 
preventing  frauds  and  perjuries,"  (Purd.  Dig.  371,  1  Dall.  Laws,  641,  1  Sm.  Laws, 
390)  it  is  provided,  "that  the  Act  entitled 'An  Act  for  better  settling  of  intes- 
tates' estates,'  passed  &c.  shall  not  be  construed  to  extend  to  the  estates  of  feme- 
coverts  that  shall  die  intestate,  but  their  husbands  may  demand  and  have  adminis- 
tration of  their  rights,  credits  and  other  personal  estates,  and  recover  and  enjoy 
the  same,  as  they  might  have  done  before  the  making  of  the  said  Act."  The  Act 
"for  better  settling  intestates'  estates"  was  repealed  by  the  act  of  19th  April,  1794. 
(Purd.  Dig.  372.    3  Dall.  Laws,  521.    3  Sm.  Laws,  143.) 

And  upon  the  deatli  of  a  husband  who  has  survived  his  wife,  and  adminis- 
tered upon  her  estate,  his  executor  (or  it  seems  his  administrator)  is  entitled  to 
be  administrator  dc  bonis  non  of  the  wife,  in  preference  to  her  next  of  kin,  or  (it 
would  seem)  to  the  husband's  residuary  legatee.  Hendren  v.  Co/gin,  4  Munf.  Kep. 
231.  So  if  the  husband  survive  the  wife,  and  die  without  administering  on  her 
property,  or  before  he  had  completed  the  administration,  and  the  wife's  next  of 
kiu  administer,  such  administrator  becomes  trustee  for  the  representatives  pi" the 
husband.  Stevmrt  v.  Stewart,  7  Johns.  Cha.  Rep.  244.  Whitaher  v.  Whita- 
kcr,  6  Johns,  Rep.  117. 


CHAP.  III.]       OF  GRANTING  ADMINISTRATION.  85 

Such  is  the  general  right  of  the  husband  to  the  administration  of 
the  wife's  effects;  but  this  right  may,  in  certain  cases,  be  controlled 
or  varied  (u).  If  the  husband  part  with  all  his  interest  in  his 
wife's  fortune,  he  shall  not  be  entitled  to  the  administration;  as, 
where  a  wife  had  a  power  to  make  a  will,  and  dispose  of  her 
whole  estate,  and  though,  strictly  speaking,  she  made  no  will,  but 
rather  an  appointment  capable  of  operating  only  in  equity,  the 
court  held  that  it  was  for  the  spiritual  jurisdiction  to  determine  to 
whom  to  grant  administration,  and  refused  to  interpose  in  favour 
of  the  husband  (iv). 

So  where  a  feme  covert,  by  virtue  of  her  power  to  dispose  of 
her  estate,  devised  a  term  for  years  to  J.  S.,  administration  was 
granted  to  the  devisee  (x).  (1) 

[86]  On  the  other  hand,  where  the  return  to  a  mandamus  to 
grant  administration  to  a  husband  stated  that,  by  articles  before 
marriage,  it  was  agreed  that  the  wife  should  have  power  to  make 
a  will,  and  dispose  of  a  leasehold  estate,  and  pursuant  to  this  power 
she  had  made  a  will,  and  appointed  her  mother  executrix,  who 
had  duly  proved  the  same,  it  was  objected  that  she  might  have 
things  in  action  not  covered  by  the  deed,  and  that  the  husband 
was  at  all  events  entitled  to  an  administration  in  respect  to  them, 
though  equity  would  control  it  in  respect -to  the  lease;  the  court 
allowed  the  objection,  and  granted  a  peremptory  mandamus  (y). 

In  case  of  a  limited  probate,  granted  to  the  executor  of  a  marri- 
ed woman  as  above  mentioned  (z ),  the  husband  is  entitled  to  ad- 
ministration of  the  other  part  of  her  property,  which  is  called  an 
administration  costerorum. 

Secondly,  the  ordinary  is  to  grant  administration  of  the  effects 
of  the  husband  to  the  widow  or  next  of  kin  ;  but  he  may  grant  it 
to  either,  or  both,  at  his  discretion  {a ).  (2)  If  the  widow  renounce 
administration,  it  shall  be  granted  to  the  children  or  other  next  of 
kin  of  the  intestate,  in  preference  to  creditors. 

[87]  The  ordinary  may  grant  administration  quoad  part  to  the 
wife,  and  as  to  the  other  part,  to  the  next  of  kin;  for  in  such  case 

(u)  3  Bac.  Abr.  55.  in  note.     Com.  Rep.  143.  S.  C. 

Dig.  Admon.  B.  6.  vid.  infr.  {y)  4  Burn.    Eccl.  L.  232.     Rex  v. 

{w)  4  Burn.  Eccl.  L.  232.    Rex  v.  Bettesworth,  Stra.  891. 

Bettesworth,   Stra.  1111.  (z)  Vid.  supr.  68. 

(x)    11    Tin.  Abr.  87.     Marshall  v.  (a)  Vid.  11   Vin.    Abr.   92.     Anon. 

Frank,    Prec.    Chan.    480.     Gilb.  Eq.  Stra.  552. 

(1)  The  person  entitled  to  the  estate  is  entitled  to  the  administration  also,  as 
well  de  bonis  nun  as  originally,  Cutchin  v.  Wilkimon,  1  Call's  Rep.  3;  and  therefore 
where  the  personal  property  of  the  wife  was  so'settled  by  deed,  before  marriage, 
that  upon  her  decease  intestate  in  her  husband's  lifetime,  her  trustee  was  to  con- 
vey the  same  to  her  legal  heirs,  it  was  held,  that  her  nearest  blood  relation  was,  in 
such  event,  entitled  to  the  administration  of  her  estate  in  preference  to  her  hus- 
band.    Bray  v.   Dudgeon,  6  Munf.  132. 

(2)  And  natural  children,  who  were  residuary  legatees,  have  been  preferred 
to  the  widow,  in  a  case  where  the  executors  named  in  the  will  refused  to  act. 
Govane  v.  Govanc,  1  Harr.  5c  M'llen.  346. 


87  OF  GRANTING  ADMINISTRATION.  [iJOOK  II. 

there  can  be  no  ground  to  complain,  as  the  ordinary  is  not  bound 
to  grant  it  exclusively  to  either  (b).  But  the  administration  is  so' 
much  a  claim  of  right,  that  a  mandamus  will  be  issued  by  the 
court  of  K.  B.   in  favour  of  the  party  entitled  to  enforce  it  (c). 

It  now  becomes  necessary  to  inquire  who  are  such  next  of  kin 
as  shall  be  thus  entitled. 

Consanguinity  or  kindred  is  defined  to  be  vinculum persQnarum 
ab  eodem  stipitc  descendeniium,  the  connexion  or  relation  of  per- 
sons descended  from  the  same  stock  or  common  ancestor.  This 
consanguinity  is  either  lineal  or  collateral  (d). 

Lineal  consanguinity  is  that  which  subsists  between  persons  of 
whom  one  is  descended  in  a  direct  line  from  the  other,  as  between 
J.  S.  the  propositus  in  the  table  of  consanguinity,  and  his  father, 
grandfather,  great-grandfather,  and  so  upwards  in  the  ascending 
line;  or  between  J.  S.  and  his  son,  grandson,  and  great-grandson, 
and  so  downwards  in  the  direct  descending  line.  Every  genera- 
tion in  this  lineal  direct  consanguinity  constitutes  a  different  de- 
gree, reckoning  either  upwards  or  downwards.  The  father  of  J.  S. 
is  related  to  him  in  the  first  degree,  and  so  likewise  is  his  son  ;  his 
grandsire  and  grandson  in  the  second;  his  great  gfandsirc  and  great 
[SS]  grandson  in  the  third.  This  is  the  only  natural  way  of  reck- 
oning the  degrees  in  the  direct  line,  and  therefore  universally  ob- 
tains as  well  in  the  civil  and  canon  as  in  the  common  law. 

Thus  this  lineal  consanguinity  falls  strictly  within  the  definition 
of  vinculum  per  son  arum  ab  eodem  stipite  descendentium,  since 
lineal  relations  are  such  as  descend  one  from  the  other,  and  both  of 
course  from  the  same  common  ancestor  (e). 

Collateral  kindred  answers  to  the  same  description;  collateral  re- 
lations agreeing  with  the  lineal  in  this,  that  they  descend  from  the 
same  stock  or  ancestor,  but  differing  in  this,  that  they  do  not  de- 
scend the  one  from  the  other. 

Collateral  kinsmen  are,  then,  such  as  lineally  spring  from  one 
and  the  same  ancestor,  who  is  the  stirps  or  root,  stipes  or  com- 
mon stock,  from  which  these  relations  are  branched  out.  As  if 
J.  S.  have  two  sons  who  have  each  issue;  both  of  these  issues  are 
lineally  descended  from  J.  S.  as  their  common  ancestor,  and  they 
are  collateral  kinsmen  to  each  other,  because  they  are  all  descend- 
ed from  one  common  ancestor,  and  all  have  a  portion  of  his  blood 
in  their  veins,  which  denominates  them  consanguineos. 

[S9]  Thus  the  very  being  of  collateral  consanguinity  consists  in 
this  descent  from  one  and  the  same  common  ancestor.  A.  and  his 
brother  arc  related,  because  both  are  derived  from  one  father.  A. 
and  his  first  cousin  are  related,  because  both  are  descended  from 
the  same  grandfather;  and  his  second  cousin's  claim  to  consanguin- 
ity is  this,  that  they  are  both  derived  from  one  and  the  same  great- 
er) 11  Vin.  Abr.  71.  3  Bac.  Abr.  55.  8  East.  408. 
Com.  1%.  Admon.  B.  6.  Fawtry  v.  (d)  2  Bl.  Com.  202. 
Fawtiy,  1  Salk.  66.     Vid.  infr.  (e)  Ibid.  203,  204. 

(')  Rex    v.  Inhabitants  of  HorsIeVj 


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Second    j 
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CHAP.   III.]       OF  GRANTING  ADMINISTRATION.  89 

grandfather.  In  short,  as  many  ancestors  as  a  man  has,  so  many 
common  stocks  he  has,  from  which  collateral  kinsmen  are  derived. 
And  as  from  one  couple  of  ancestors  the  whole  race  of  mankind  is 
descended,  it  necessarily  follows  that  all  men  are  in  some  degree 
related  to  each  other  (f). 

The  mode  of  calculating  the  degrees  in  the  collateral  line  is  not 
that  of  the  canonists  adopted  by  the  common  law  in  the  descent  of 
real  estates,  but  conforms  to  that  of  the  civilians,  and  is  as  follows; 
to  count  upwards  from  either  of  the  parties  related  to  the  common 
stock,  and  then  downwards  again  to  the  other,  reckoning  a  degree 
for  each  person,  both  ascending  and  descending  (g)  ;  or  in  other 
words,  .to  take  the  sum  of  the  degrees  in  both  lines  to  the  common 
ancestor  (h). 

Thus,  for  example,  the  propositus  and  his  cousin-german  are  re- 
lated in  the  fourth  degree.  We  ascend  first  to  the  father  (i),  which 
[90]  is  one  degree,  and  from  him  to  the  common  ancestor,  the 
grandfather,  which  is  the  second  degree  ;  from  the  grandfather  we 
descend  to  the  uncle,  which  is  the  third  degree;  and  from  the  un- 
cle to  the  cousin-german,  which  is  the  fourth  degree.  So,  in  reck- 
oning to  the  son  of  the  nephew,  or  brother's  grandson,  we  ascend 
to  the  father,  which  is  one  degree  ;  from  the  father  we  descend  to 
the  brother,  which  is  the  second  degree;  from  the  brother  we  de- 
scend to  the  nephew  which  is  the  third  degree;  and  from  the  nephew 
to  the  son  of  the  nephew,  which  is  the  fourth  degree  (k). 

Of  the-  kindred,  those,  we  must  recollect,  are  to  be  preferred, 
who  are  the  nearest  in  degree  to  the  intestate;  (1)  but  from  among 
persons  of  equal  degree,  in  case  they  apply,  the  ordinary  has  the 
power  of  making  his  election  (/).  • 

The  court  never  forces  a  joint  administration  ;  and  where  the 
option  was  between  two  persons  in  equal  degree  of  relationship, 
one  of  whom  had  been  twice  a  bankrupt,  the  court  rejected  the 
claim  of  the  latter,  and  condemned  him  in  costs  (m). 

But  if  there  be  no  material  objection  on  one  hand,  or  reasons  of 
preference  on  the  other,  the  court  in  it's  discretion,  (2)  puts  the  ad- 
ministration into  the  hands  of  the  person  with  whom  the  majority 
of  interests  are  desirous  of  entrusting  the  estate  (n). 

Of  the  next  of  kin,  then,  first  the  children,  and,  on  failure  of 

(/)  2  Bl;  Com.  204,  205.  504.  (k)  4  Burn.  Eccl.    L.  355.     Black. 

(g)     Ibid.    207.    504.     Mentney    v.  Desc.  41,  42. 

Petty,  Pre.  in  Ch.  593.  (0  n  vin-    Abr-    114>    115-     Com- 

(h)  Ibid.  12th  edit,  note  (4).  Dig.  Admon.  B.  6. 

(/)  See   the  table  of  consanguinity  (m)  Bell  v.  Timiswood,  2  PhUl.  Rep. 

prefixed,  in  which  the  degrees  of  col-  22. 

.lateral  consanguinity  are  computed  as  (n)  Budd  v.  Silver,  2  Phill.  Rep.  115. 
far  as  the  sixth. 


(1)  The  daughter  is  to  be  preferred,  in  granting  administration,  to  <he  son  of 
the  eldest  son  of  the  intestate.     Lee  v.  Sedgwick,  1   Root's  Rep.  52. 

(2)  See  Weave's  Case,  9  Scrg.  &  Raw.le,  186. 

9 


90  OF  GRANTING  ADMINISTRATION.  [BOOK  I. 

them,  the  father  of  the  deceased,  or  if  he  be  dead,  the  mother,  (1)  is 
entitled  to  administration:  the  parents  indeed,  as  well  as  the  chil- 
dren, are  of  the  first  degree,  but  the  children  are  allowed  the  pre- 
ference (o);  then  follow  brothers  (p);  but  primogeniture  gives  no 
[91]  right  to  a  preference  (q);  then  grandfathers  (r),  and  although 
they  are  both  of  the  second  degree,  yet  the  former  are  first  enti- 
tled; next  in  order  are  uncles  or  nephews  (s),  and  lastly  cousins, 
and  the  females  of  each  class  respectively  {t).  Relations  by  the 
father's  side  and  the  mother's,  in  equal  degree  of  kindred,  are 
equally  entitled;  for  in  this  respect  dignity  of  blood  gives  no 
preference  (u).  So  the  half  blood  is  admitted  to  the  administra- 
tion as  well  as  the  whole  (v),  for  they  are  the  kindred  of  the  in- 
testate, and  excluded  from  inheritances  of  land  only  on  feudal  rea- 
sons (iv);  therefore  the  brother  of  the  half  blood  shall  exclude  the 
uncle  of  the  whole  blood  (x);  and  the  ordinary  may  grant  admin- 
istration to  the  sister  of  the  half,  or  the  brother  of  the  whole  blood, 
at  his  discretion  (y). 

If  a  feme  covert  be  entitled,  she  cannot  administer  unless  with 
the  husband's  permission  (z),  inasmuch  as  he  is  required  to  en- 
ter into  the  administration  bond,  which  she  is  incapable- of  doing. 
But  if  it  can  be  shewn  by  affidavit  that  the  husband  is  abroad,  or 
otherwise  incompetent,  a  stranger  may  join  in  such  security  in 
[92]  his  stead.  In  either  case  the  administration  is  committed  to 
her  alone,  and  not  to  her  jointly  with  her  husband  (a)  ;  other- 
wise, if  he  should  survive  her,  he  would  be  administrator,  contra- 
ry to  the  meaning  of  the  act  (b). 

If  it  were  committed  to  them  jointly  during  coverture  only  it 
might  perhaps  be  g%od,  because,  if  committed  to  the  wife  alone, 
the  husband  for  such  period  may  act  in  the  administration  with  or 
without  her  assent;  and  therefore  the  effect  of  the  grant  seems  in 
either  case  the  same  (c). 

If  the  wife  be  the  only  next  of  kin,  and  a  minor,  she  may  elect 
her  husband  her  guardian  to  take  the  administration  for  her  use 
and  benefit  during  her  minority  ;  but  the  grant  ceases  on  her  com- 
ing of  age,  when  a  new  administration  may  be  committed  to  her. 

(o)  11  Vin.  Abr.  91,  92.  2  Til.  Com.  cey,  1  Vcntr.  323.  424.     Earl  of  Win- 

504.  chelsea  v.  NorclifPe,  1  Verri.  437. 

(p)  11  Vin.  Abr.  93.  (w)  2  Bl.  Com.  505. 

(y)  Warwick    v.    Greville,   1    Phill.  (x)  11  Vin.  Abr.  85. 

Rep.  123.  (;>/)  2  Bl.  Com.  505. 

(r)  11  Vin.  Abr.    9;".    and   in    note  (z)  Thrnstout  v.   Coppin,   Bl.    Rep. 

Lord  llaym.  684.    Com.   Dig-.  Admon.  801. 

B.  6.    Blackborough  v.   Davis,  1  Salk.  («)  11  A'in.  Abr.  ^5.    4  Burn.  Eccl. 

38.  L.  241.  Com.  Dig.  Admon.  D.  Sty.  75. 

(s)    2    Bl.    Com.    505.     Stanley    v.  (//)  3  Salk.  21. 

Stanley,  1  Atk.  455.  (c)   11   Vin.  Abr.   85.    4  Burn.  Eccl. 

(f.)  2  Bl.  Com.  505.  L.  241.    Com.  Dig.  Admon.  D.    Wank- 

(u)    Blackborough    v.    Davis,    1    P.  ford  v.  Wankford,  1   Salk.    305.    Yid. 

"VVms.  53.  Thrustoui  v.  Coppin,  Bl.  Rep.  801. 
U  Vin.   Abr-    11      Smith  v.  Tra- 

,        

(1)             ■        Ludwig,  1  S<  rg.    iRav 


CHAP.  III.]       OF  .GRANTING  ADMINISTRATION.  92 

The  stat.  21  //.  8.  has  also  expressly  provided  for  another  case 
than  that  of  actual  intestacy;  namely,  where  the  deceased  has  made 
a  will,  and  appointed  an  executor,  and  such  executor  refuses  to 
take  out  probate  (b),  in  such  an  event  the  ordinary  must  grant  ad- 
ministration cum  testamenlo  annexo,  with  the  will  annexed,  and 
the  duty  of  such  grantee  differs  but  little  from  that  of  an  executor 
[ ~93](c).  He  is  equally  bound  to  act  according  to  the  tenor  of  the  will. 

So,  if  one  of  two  executors  prove  the  will  and  die,  and  then 
the  other  refuse,  such  administration  shall  be  granted  (d). 

The  ordinary  cannot  grant  administration  with  the  will  annexed 
in  which  an  executor  is  named,  until  he  has  either  formally  re- 
nounced his  right  to  the  probate,  or  neglected  to  appear  on  being 
duly  cited  to  accept  or  refuse  the  same.  So  if  several  executors 
be  named  in  the  will,  they  must  all  refuse,  or  fail  to  appear  on  ci- 
tation previous  to  the  grant.  After  such  administration  the  execu- 
tor cannot  retract  his  refusal  during  the  lifetime  of  the  administra- 
tor, but  he  may  do  so  after  the  grant  has  ceased  by  the  administra- 
tor's death  (e). 

A  party,  although  otherwise  entitled,  may  be  incapable  of  the 
office  of  administrator-  on  account  of  some  disqualification  in  point 
of  law.  The  incapacities  of  an  administrator  are  not  confined  to 
such  as  have  been  enumerated  in  respect  of  executors,  but  com- 
prise attainder  of  treason,  or  felony,  outlawry,  imprisonment,  ab- 
sence beyond  sea,  bankruptcy  (/"),  and,  in  short,  almost  every 
[94]  species  of  legal  disability;  for,  by  the  express  requisition  of 
the  statute,  the  ordinary  is  bound  to  grant  administration  to  the 
next  and  most  lawful  friends  of  the  intestate  (g). 

But  coverture  is  no  incapacity,  nor  is  alienage,  if  qualified,  as 
in  the  case  of  executors  (A).  Even  an  alien  of  the  half  blood  may 
be  appointed  an  administrator  (i). 


Sect.   II. 

Of  the  analogy  of  administrations  to  probates. 

What  has  been  stated  respecting  the  different  jurisdictions  re- 
la'tive  to  probates,  of  issuing  a  commission  or  requisition  in  case 
the  party  be  in  an  ill  state  of  health,  or  reside  at  a  distance;  of  bo- 
na notabilia  ;  of  the  ecclesiastical  privilege  of  granting  probate 
being  personal,  and  not  local  (a)  ;  of  its  devolving  -on  the  arch- 
bishop where  the  party  deceased  was  a  bishop,  and  on  the  dean 

(b)  4  Burn.  Eccl.  L.  228.  11-Vin.  (g)  Com.-  Dig.  Admon.  B.  6.  Fa\r- 
Abr.  78.     2  Inst.  397.  try  v.  Fawtrv,  1  Salk.  36. 

(c)  2  Bl.  Com.  504.  "(/')  Com. "Dig.  Admon.  B.  6.  Ca- 
(il)  Vid.  supr.  69.  roon's  case,  Cro.  Car.  9.  Anon.  1 
(?)   \  id.  supr.  45.                                     Brownl.  31. 

(  /  )  Co.  39  1).  Com,  Dig.  Admon.  (/')  11  Yin.  Abr.  94.  Crooke  v. 
B.  6.     1  'Burn.   Eccl,   L.  233,     3  Bac,     Watt,  2  Vern.  126. 

6,  in  note.  [a)    l   Burn.  Eccl.  L,  241, 


94  PRACTICE  IN   REGARD  [BOOK  I. 

and  chapter  in  case  of  the  death  or  suspension  of  the  metropoli- 
tan or  ordinary;  of  his  being  compelled  by  mandamus  to  grant 
[95~\  probate,  unless  he  return  a  lis  pendens  (6);  of  caveats  and 
appeals;  of  the  power  of  the  court  of  appeal  to  grant  probate  where 
the  sentence  is  reversed  (c);  of  probates  being  of  unquestionable 
validity  in  courts  of  common  law  (d)  ;  of  the  register's  book  in 
the  spiritual  court  being  evidence  where  the  probate  is  lost  (e);  and, 
if  issue  be  taken  thereon,  of  its  being  triable  by  a  jury;  applies 
equally  to  letters  of  administration. 


Sect.  III. 
In  regard  to  the  acts  of  a  party  entitled  previous  to  the  grant. 

Although  an  executor  may  perform  many  acts  before  he  proves, 
yet  a  party  can  do  nothing  as  administrator  till  letters  of  adminis- 
tration are  issued,  because  the  former  derives  his  authority  from 
the  will,  and  not  from  the  probate;  (1)  the  latter  owes  his  entirely 
to  the  appointment  of  the  ordinary  (f). 

It  has  indeed  been  held  that  a  party  before  administration  may 
file  a  bill  in  chancery^although  he  cannot  commence  an  action  at 
law  (g).  ' 

[96]  But  by  stat.  37  Geo.  3.  c.  90.  s.  10.  if  a  party  adminis- 
ter, and  omit  to  take  out  letters  of  administration  within  six  months 
after  the  intestate's  death,  he  incurs  the  penalty  of  fifty  pounds  (A). 


Sect.  IV. 
Practice  in  regard  to  administrations. 

Letters  of  administration  do  not  issue  till  after  the  expiration 
of  fourteen  days  from  the  death  of  the  intestate,  unless,  for  special 
cause,  as  that  the  goods  would  otherwise  perish,  the  judge'shall 
think  fit  to  decree  them  sooner  (a).  (2) 

On  taking  out  letters  of  administration,  the  party  swears  that 
the  deceased  made  no  will,  as  far  as  the  deponent  knows  or  be- 

ib)  4  Burn.  Eccl.  L.  230.  Com.  Dig.  Case,  1  Lev.  101. 

Admon.  B.  7.    11  Vin.    Abr.  74.  202.  (/)  11  Vin.  Abr.  202.  4  Burn.  Eccl. 

4  Inst.  335.  L.  241.  Wankford  v.  Wankford,  Salk. 

(c)  11    Vin.  Abr.    76.     Com.    Dig.  301. 

Admon,  B.  2.    2  Roll.  Abr.  233.  («•)  4  Burn.  Eccl.  L.  242.     Fell  v. 

(d)  Tourton  v.  Flower,  3  P.  Wms.  Lutwidge,  Barnardist.  320. 
369.  (h)  Vid.  supr.  43.  66. 

(e)  4  Burn.  Eccl.  L.  248.  Peaulie's  (a)  4  Burn.  Eccl.  L.  242. 


(1)  See  15  Serg.  &  Kawle,  42. 

(2)  The  practice  in  Pennsylvania  is,  unless  a  caveat  be  filed,  to  grant  letters  of 
administration  immediately  upon  the  decease  of  the  intestate,  if  applied  for.  The 
Register,  however,  w'ril  revoke  the  grant,  if  any  person  having  a  paramount  righi 
make  application  within  fourteen  days  from  the  death  of  the  intestate. 


CHAP.   HI.]  TO  ADMINISTRATIONS.  G(J 

lieves,  and  that  he  will  truly  administer  the  goods,  chattels,  and 
credits,  by  paying  the  deceased's  debts,  as  far  as  the  same  wdl  ex- 
tend, and  the  law  charge  him  ;  and  that  he  will  make  a  true  and 
perfect  inventory  of  all  the  goods,  chattels,  and  credits,  and  ex- 
hibit the  same  into  the  registry  of  the  spiritual  court  at  the  time 
assigned  him  by  the  court,  and  to  render  a  just  account  of  his  ad- 
ministration when  lawfully  required. 

[97]  And,  pursuant  to  the  stat.  21  H.  3.  c.  5.  and  the  22  &  23 
Car.  2.  c.  10.,  he  enters  into  a  bond  with  two  or  more  sureties 
conditioned  for  the  making  or  causing  to  be  made  a  true  and  per- 
fect inventory  of  all  and  singular  the  goods,  chattels,  and  credits  of 
the  deceased,  which  have  or  shall  come  to. the  hands,  possession, 
or  knowledge  of  the  administrator,  or  into  the  hands  or  possession 
of  any  other  person  or  persons  for  him;  and  for  exhibiting  the  same 
into  the  registry  of  the  spiritual  court  at  or  before  the  end  of  six 
months;  and  for  well  and  truly  administering,  according  to  law, 
such  goods  and  chattels  ;  and  further,  for  the  making  a  true  and 
just  account  of  his  administration  at  or  before  the  end  of  twelve 
months;  and  for  delivering  and  paying  all  the  rest  and  residue  of 
the  goods,  chattels,  and-  credits  which  shall  be  found  remaining  on 
his  accounts  (the  same  being  first  examined  and  allowed  of  by  the 
judge  of  the  court),  unto  such  person  or  persons  respectively  as  the 
judge  by  his  decree  or  sentence,  pursuant  to  the  statute  of  distri- 
bution, shall  limit  and  appoint;  and  if  it  shall  thereafter  appear  that 
any  will  was  made  by  the  deceased,  and  the  executor  therein  nam- 
ed exhibit  the  same  into  the  court,  making  request  to  have  it  al- 
lowed and  approved  accordingly,  for  the  administrator's  rendering 
and  delivering,  on  being  thereunto  required  (approbation  of  such 
testament  being  first  had  and  made),  the  letters  of  administration 
in  the  court.  (1) 

[9S]  When  administration  has  been  once  committed  to  any  of 
the  next  of  kin,  others,  even  in  the  same  degree  of  kindred,  have, 
during  the  life  of  the  administrator,  no  title  to  a  similar  grant;  so 
different  is  this  case  from  that  of  an  executor,  who  has  a  right  to  pro- 
bate, though  it  has  been  already  taken  out  by  his  co-executor.  The 
maxim,  "  qui  prior  est  tempore,  potior  est  jure"  applies  in  the 
former  but  not  in  the  latter  instance  (b). 


Sect.  V. 

Of  sjyecial  and  limited  administrations. 

There  are  also  various  classes  of  administrations,    which,   al- 
though not  founded  on  the  letter  of  any  of  the  above  mentioned 

(6)   11  V'm.   Abr.  116.     Thomas  v.  Butler,  1  Veritr.  218. 

(1)  Sec  the  Act  of  \9th  JJpri I,   1794,   (I'urd.  Dig.  372,    3  Dall.  Laws,  521, 
'  3  Sm.  Laws,  1 13,)  Ant  ,  page  82,  note  (2), 


OF   SPECIAL  AND  [BOOK   I. 

statutes,  fall  within  their  spirit  and  intendment  fc).     As,  if  no  ex- 
ecutor, be  named  in  the  will,  the  clause  for  such  appointment  L 
wholly  omitted,  01  where  a  blank  is  left  for  his  name,  administra- 
tion shall  he  granted  with  the  will  annexed,  when  it  shall  be  proved 
in  the  same  manner  as  in  the  case  of  an  executor 

Or  if  the  executor  die  in  the  lifetime  of  the  testator  (e),  or  if  the 
testator  name  the  executor  of  B.  to  be  his  executor,  and  die 
in  the  lifetime  of  B.,  for  till  B."s  death  he  is  in  effect  intestate 

Or  if  he  name  an  executor  to  have  authority  after  a  year  from  his 
death,  for  during  the  year  there  is  no  executor  (g) :  and  in  such  < 
administration  shall  be  granted  in  the  interval. 

So,  if  the  executor  b«  incapable  of  the  office,  the  party  is  said  to 
die  quasi  infestatus.  and  the  ordinary  must  grant  administration. 

So,  if  an  executor  is  afterwards  disabled  from  a  if  he  be- 

come lunatic,  then,  on  the  same  principle  of  necessity,  there  ; 
be  a  g^ant  off  a  temporary  administration  with  the  will  annexed  (A). 

SoT  in  all  the  above-mentioned  instances,  if  there  be  a  residuary 
legatee,  administration  .ted  to  him  in  exclusion  of 

the  next  of  kin,  because  in  that  case  the  ne%t  of  kin  hath  no  inte- 
in  the  joroperty,  and  the  presumpyon-of  the  statute,  that  the 
:or  would  have  given  it  to  him,  cannot  :  ore  sueh  a  le- 

gatee is  appointed  [i  .  1       And  even  where  there  is  no  prospect  of 
.due,  a  residuary  legatee  is  entitled  to  an  administration  de 
bo7u$.  in  preference  to  legatees  and  annuita: 

If  several  persons  are  entitled  to  the  residue,  it  may  be 
to  a:  ad  if  it  be  thus  granted,  the  other  residuary 

legatees  have  no  claim  to  a  subsequent  grant  in  the  lifetime  of  the 
itee. 

[100]  Such  administration  may  be  also  granted,  although  it  be 
uncertain  whether  there  will  eventually  be  a  residue  or  not(m). 

Of  this  species  also  is  an  administration  durante,  minoritate,  or 
during  the  infancy  or  minority  of  an  executor,  or  a  party  entitled 
to  administration  (;}). 

A  distinction  exists  in  the  spiritual  court  between  an  infant  and 
a  minor.     The  former  is  so  denominated  if  under  seven  years  of 
age,  the  latter  from  seven  to  twenty-one.      The  ordinary  ex  c: 
_~s  a  guardian  to  an  infant.     The  minor  himself  nominate - 

(c)  Bum.Ec  r.         (»">  11  Vin.  Abr.  90. « 

I  cllis-         {k)  Atkinson v.l                         -  Phil- 
ton,  2  T.  v  590.                    limore.  516. 

:.    >       A  :                                .  ".-         (/,   Com.  Diir.  Admon.  (B.  6.) 

raon.'B.  1.  lor  r.  Shore,  2  Jon.  162.     11  Vin.  Abr. 
(e)  11  Via.  Abr. 

(/  on."                            (m)  Com.  Dig.  Admon.  (B.  6.)  Thom- 

0^)  Plo-  1  b. 

■ 


' 


CHAP.  III.]  LIMITED  ADMINISTRATIONS.  100 

guardian,  who  then  is  admitted  in  that  character  hy  the  judge.  Ac- 
cording to  the  practice  of  the  court,  the  guardianship  in  cither  case 
is  granted  to  the  next  of  kin  of  the  child,  unless  sufficient  objection 
to  him  be  shewn,  and  administration  is  committed  to  such  appointee 
for  the  use  and  benefit  of  the  infant  or  minor. 

Although,  as  we  have  seen  (n),  an  administration  during  the  mi- 
nority of  an  infant  executor  was,  antecedently  to  the  stat.  3S  Geo. 
3.  c.  87.,  determined  on  his  attaining  the  age  of  seventeen,  yet  ad- 
ministration during  the  minority  of  an  infant  next  of  kin  was  al- 
ways of  force  until  his  age  of  twenty-one;  on  the  principle  that  the 
[101]  authority  of  an  administrator  is  derived  from  the  stat.  of  31 
Ed.  3.  c.  11.,  which  admits  only  a  legal  construction,  and  there- 
fore it  was  held  he  must  be  of  the  legal  age  of  twenty-one  before 
he  is  competent;  and  the  executor  comes  in  by  the  act  of  the  party, 
and  that  he  should  be  capable  of  the  executorship  at  the  age  of  se- 
venteen was  in  conformity  to  other  provisions  of  the  spiritual  law^j. 
And  also,  which  was  the  more  forcible  reason,  because  the  statute 
of  distributions  requires  administrators  to  give  a  bond,  which  an 
infant  is  incapable  of  doing  (p). 

But  now  by  the.  above-mentioned  stat.  3S  Geo.  3.  c.  87.,  reciting, 
that  inconveniences  arose  from  granting  probate  to  infants  under 
the  age  of  twenty-one,  it  is  enacted,  that  where  an  infant  is  sole 
executor,  administration  with  the  will  annexed  shall  be  granted 
to  the  guardian  of  such  infant,  or  to  such  other  person  as  the  spiri- 
tual court  shall  think  fit,  until  such  infant  shall  have  attained  the 
full  age  of  twenty-one  years,  at  which  period,  and  not  before,*  pro- 
bate of  the  will  shall  be  granted  to  him. 

If  administration  be  granted  to  such  guardian  for  the  use  and 
benefit  of  several  infants,  it  ceases  on  the  eldest  attaining  twenty- 
one. 

If  there  be  several  infant  executors,  he  who  first  attains  the  age 
[102]  oftwenty-oneyears  shall  prove  the  will,  and  the  administration 
shall  cease  {q);  but  administration' granted  during  the  minority  of 
several  children  will  not  expire  on  the  marriage  of  one  of  them  to 
a  husband  of  full  age  (r).  Nor,  if  an  infant  be  executrix,  shall 
it  be  determined  by  her  taking  a  husband  who  is  of  age.  Nor,  if 
there  be  several  infants,  by  the  death  of  one  of  them  (s). 

If  administration  be  granted  pendente  minore  celate,  and  the 
minor  coming  of  age  takes  upon  himself  the  administration,  he 
must  give  security  to  the  same  amount,  that  the  administrator  did 
in  the  first  instance  (t). 

If  there  be  two  executors,  one  of  whom  has  attained  the  age  of 
twenty-one  years,  and  the  other  not,  administration  shall  not  be 

(//)  Supr.  31.  473,  474. 

(o)  4  Burn.  Eccl.  L.  238,  239.  Freke         (t)  Jones  v.  Earl  of  Stafford,   3  P. 

v.  Thomas,  Ld.  Raym.  667-    Com.  Dig.  Wins.  79. 
Admon.  (F.)  (.s)  Jones  v.  Earl  of  Stafford,  3  P. 

O)   11  Vin.  Abr.  100,  101.     3  P.ac.  Wms.   79.     Scd  vide    Com.    Dig.  Ad- 

Abr.  13.     Harg.  Co.  Litl.  89  b.  note  6.  mon.  (F.)  and  5  Co.  29  b. 

17)  4-Buvn.  Eccl.  L.  240     L    ifTest.         (/)  Abbott  \    Abbott,  2  Phill.  57$. 


102  OF  SPECIAL  AND  [BOOK  I. 

granted  during  the  minority  of  him  that  is  under  age,  because  the 
former  may  execute  the  will  (/). 

According  to  other  authorities  (u),  administration  shall  in  such 
case  be  granted  to  the  one  executor  during-  the  minority  of  the 
other;  but  they  are  not  warranted  by  modern  practice. 

This  administration  ought  not  to  be  committed  to  a  party  who 
is  very  poor,  or  in  distressed  circumstances,  though  the  guardian 
or  next  of  kin  to  the  infant.  When  the  court  of  chancery  sees 
reason  to  think  that  such  administrator  will  waste  or  misapply  the 
effects  of  the  intestate  to  the  prejudice  of  the  infant,  for  whom  he 
is  merely  a  trustee,  that  court  will  appoint  a  receiver  of  the  per- 
[103]  sonal  estate,  notwithstanding  the  grant  of  administration  (v). 

It  has  been  held  by  some,  that  if  such  administrator  continues 
the  possession  of  the  goods  after  the  full  age  of  the  executor,  he 
becomes  an  executor  de  son  tort;  but  this  is  denied  by  others, 
and  their  opinion  seems  to  be  more  correct,  because  he  came  to 
the  possession  of  the  goods  lawfully  (w). 

In  this  class  is  also  to  be  ranked  administration  pendente  lite, 
while  the  suit  is  pending  (x);  and  it  may  be  granted,  whether  the 
suit  respects  a  will-  or  the  right  of  administration  \y).  But  it  is 
never  granted  till  a  plea  in  the  cause  has  been  given  in,  and  ad- 
mitted. 

Nor  will  the  court  of  chancery,  generally  speaking,  in  such  case 
interfere,  and  appoint  a  receiver  during  the  litigation  (z). 

Of  the  same  speeies  also  is  administration  grounded  on  the  in- 
capacity of  the  next  of  kin  at  the  time  of  the  intestate's  death, 
arising,  for  instance,  from  attaint  or  excommunication,  madness, 
[104]  or  bankruptcy.  If  such  incapacity  be  afterwards  removed, 
such  administration  may  be  avoided  («). 

To  this  description  also  must  be  referred  administration  granted 
at  common  law  durante  absentia,  during  the  absence  of  the  exe- 
cutor or  next  of  kin  from  the  kingdom;  and  it  of  course  ceases 
on  the  appearance  of. the  executor  or  next  of  kin,  and  his  taking 
out  probate  or  administration  (b). 

Under  this  head  is  also  comprised  administration  granted  to  a 
creditor:  such  administration  in  general  is  warranted  only  by  cus- 
tom, and  not  by  any  express  law,  and  may  be  granted  where  it  is 
visible  the  next  of  kin  cannot  derive  any  benefit  from  the  estate; 
but  that  is  to  be  understood  only  where  they  refuse  the  grant,  and 

(/)  4  Burn.  Eccl.  L.  240.     Pigot  and  (x)  4  Burn.  Eccl.  L.  237. 

Gascoigne's  case,  1  Brovvnl.  46.  11  V'm.  (y)  3  Bac.  Abr.  56.  Walker  v.  Wool- 

Abr.  99.     Foxwist  v.  Tremaine,  1  Mod.  laston,  2  P.  Wms.  575.     11  Vin.  Abr. 

47.     Hatton  v.  Mascal,  1  Lev.  181.  105. 

00  11  Vin.  Abr.  97,  98,  99.     3  Bac.  (z)  4  Burn.  Eccl.  L.  238.     Knight  v. 

Abr.  13.     Colborne  v.  Wright,  2  Lev.  Duplessis,  1  Ves.  325. 

239,  240.     S.  C.  2  Jo.  119.     Smith  v.  (a)  Com.  Dig.  Admon.  B.  1.    Faw- 

Smith,  Yelv.  130.  try  v.  Fawtry,  Salk.  36. 

(v)  1 1  Vin.  Abr.  100.    Havers  v.  Ha-  (i)  Roll.  Abr.  907.  Lutw.  842.  Slaugh- 

vcrs,  Barnard.  23,  24.  tor  v.  Mar,  Salk.  42.  :"id  vid.  supr.  70. 

(»•)  11  Vin.  Abr.  98.     1  Sid.  57. 


CHAP.   III.]  LIMITED  ADMINISTRATIONS.  101 

the  course  is  for  the  ordinary  to  issue  a  citation  for  the  next  of  kin 
in  special,  and  all  others  in  general,  to  accept  or  refuse  letters  of 
administration,  or  shew  cause  why  the  same  should  not  he  granted. 
to  a  creditor  (c). 

And  by  the  aforesaid  stat.  33  Geo.  3.  c.  S7.,  if,  after  the  expira- 
tion of  twelve  calendar  months  from  the  testator's  death,  the  exe- 
[105]  cutor  to  whom  probate  had  been  granted  shall  be  residing  out 
of  the  jurisdiction  of  his  majesty's  courts,  on  application  of  any  cre- 
ditor, next  of  kin,  or  legatee,  grounded  on  an  affidavit,  in  the  form 
therein  specified,  stating  the  nature  of  his  demand  and  absence  of 
the  executor,  such  administration  shall  be  granted.  (1) 

Of  the  same  nature  is  administration  committed  by  the  ordinary, 
in  default  of  all  the  above-mentioned  parties,  to  such  discreet  per- 
son as  he  shall  approve  (d). 

The  jurisdiction  of  granting  these  administrations  results  from 
the  ordinary's  original  power  at  common  law,  by  which  he  may 
make  the  grant  to  whom  he  pleases  ;  and  therefore  it  is  held,  that 
he  may  in  these  cases,  as  not  having  been  expressly  provided  for, 
impose  on  the  grantee  such  terms  as  he  may  think  reasonable  (e). 

Hence,  where  the  executors  renounced,  and  the  residuary  lega- 
tee moved  for  a  mandamus  to  the  ecclesiastical  judge  to  be  admit- 
ted to  prove  the  will,  and  have  administration  with  the  will  annex- 
ed, on  shewing  cause  the  court  held  that  the  matter  was  left  to  the 
election  of  the  ordinary,  and  discharged  the  rule  (/).  (2) 

[106]  So,  where  a  grandfather  moved  for  a  mandamus  to  such 
judge  to  grant  him  administration  of  the  effects  of  his  deceased 
son  during  the  minority  of  his  grandson,  the  court  refused  the  ap- 
plication (»•). 

On  the  same  principle,  where,  on  the  renunciation  of  the  next  of 
kin,  several  creditors  apply  for  administration,  though  the  court 
may  prefer  any  one  of  them  (A),  yet,  on  the  petition  of  the  others, 
it  will  compel  him  to  enter  into  articles  to  pay  debts  of  equal  de- 
gree in  equal  proportions,  without  any  preference  of  his  own. 

There  may.  be  also  a  limited  or  special  administration  commit- 
ted to  the  party's  care,  namely  of  certain  specific  effects,  as  of  a 
term  for  years  and  the  like,  and  the  rest  may  be  committed  to 
others,  or  for  effects  of  the  intestate  in  this  country  or  place  to  one, 

(c)  4  Burn.  Eccl.  L.  230.  2  Bl.  Com.  ler,  1  Ventr.  219.  Smith's  case,  Stra. 
505.     Blackborough    v.    Davis,    Salk.     892.   Rex  v.  Bettesworth,  ib.  956. 

38.     Com.  Dig-.  Admon.  B.  6.  (/)  4.  Burn.  Eccl.  L.  231.     Rex  v. 

(d)  2  Bl.  Com.  505.  Bettesworth,    Stra.    956.     Com.    Dig-. 

(e)  4  Burn.  Eccl.  L.  237.  3  Bac.  Abr.     Admon.  B.  6. 

13.  Ld.    Grandison  v.  Countess  of  Do-  (g)  4  Burn.  Eccl.  L.  231.     Smith's 

ver,  Skin.  155.  Walker  v.  Woollaston,  case,  Stra.  892. 

2  P.  Wms.  582,  589,  590.     Briers  v.  (A)  Harrison  v.  All  Persons,  2  Phill. 

Goddard,  Hob.   250.     Thomas  v.  But-  Rep.  249. 


(1)  Sec  Griffith  v.  Frazier,  8  Cranch.  9.  for  the  law  of  limited  administrations. 

(2)  Neave's  Case,  9  Serg\   &.  Rawle,  186. 

10 


106  OF  SPECIAL  AND  [HOOK    I. 

and  for  effects  in  that  country  or  place  to  another  ;  and  as  well  in 
general  cases,  as  in  the  case  ahove  stated,  of  the  wife,  and  next  of 
kin  (h).  But  several  administrations  cannot  be  granted  in  respect 
of  one  and  the  same  thing;  as  a  house,  or  a  bond,  or  any  other  debt. 
For  it  would  be  absurd  that  two  persons  should  have  a  distinct 
right  to  an  individual  chattel,  or  chose  in  action  {i).  In  respect 
however  to  creditors,  such  several  administrators  are  all  considered 
[107]  as  one  person,  and  may  be  sued  accordingly  (A;). 

Administration  also  may  be  granted  on  condition,  as  where  a 
former  grantee  is  outlawed,  and  in  prison  beyond  sea,  it  may  be 
committed  to  another,  but  so  as,  if  the  first  grantee  shall  return, 
he  shall  be  entitled  to  administer  (/). 

The  ordinary  also,  in  default  of  persons  entitled  to  the  adminis- 
tration, may  grant  letters  ad  colligendum  bona  defuncti,  and 
thereby  take  the  goods  of  the  deceased  into  his  own  hands,  and 
thus  assume  the  office  of  an  executor  or  administrator  in  respect  to 
the  collecting  of  them  ;  but  the  grantee  of  such  letters  cannot  sell 
the  effects  without  making  himself  an  executor  de  son  tort.  The 
ordinary  has  no  such  authority,  and  therefore  he  cannot  confer  it 
on  another  (in). 

If  a  bastard,  who,  as  nullius  Jilius,  hath  no  kindred,  or  any 
other  person  having  no  kindred  die  intestate,  and  without  wife  or 
child,  it  hath  formerly  been  holden  that  the  ordinary  could  seize 
his  goods,  and  dispose  of  them  to  pious  uses;  but  now  it  seems  set- 
tled that  the  king  is  entitled  to  them  as  ultimus  hceres  ;  yet  in 
[10S]  such  case  it  is  the  practice  to  transfer  the  royal  claim  by  let- 
ters patent,  or  other  authority  from  the  crown,  with  a  reversion, 
as  it  is  said,  of  a  tenth,  or  other  small  proportion  of  the  property, 
and  then  the  ordinary  of  course  grants  to  such  appointee  the  ad- 
ministration (n).  (1) 

It  has  indeed  been  asserted  that  such  letters  patent  are  merely 
in  the  nature  of  a  recommendation;  and  that  though  it  be  usual  for 
the  ordinary  to  admit  such  patentee,  yet  it  is  rather  out  of  respect 
to  the  king  than  strictly  of  right  (o). 

Administration  may  also  be  granted  to  the  attorney  of  all  exe- 
cutors, or  of  all  the  next  of  kin,  provided  they  reside  out  of  the 
province  :  but  if  the  effects  are  under  twenty  pounds,  such  ad- 
ministration may  be  granted,  whether  they  are  so  resident  A'  not. 

{h)  Com.  Dig.  Admon.  B.  7.     Roll.  (»i)  4  Burn.  Eccl.  L.  241.     11  Yin. 

Ah.  908.     Vid.  supr.  87.  Abr.  87.     Off.    Ex.    174,  175.     2   Bl. 

(i)  3  Bac.  Abr.  57.     Roll.  Abr.  908.  Com.  505. 

Fawtry    v.     Fawtry,    Salk.    36.       Vid.  («)  Com.   Dig.  Admon.  A.    11  Vin. 

supr.  98.  Abr.  88.    Jones    v.    Goodchild,    3    P. 

(/c)  11  Vin.  Abr.  139.  Rose  v.  Bart-  Wms.  33.     1  Wooddes.  398.     Dougl. 

lett,  Cro.  Car.  293.  548. 

(/)  Com.  Dig.   Admon.  B.  7.     Roll.  (o)  11    Vin.    Abr.   86.     Manning  v. 

Abr.  908.     11  Vin.  Abr.  70.  Napp,  1  Salk.  37. 

(1)  For  the  several  Acts  of  Assembly  in  relation  to  Escheats  in  Permsylvanu 
see   Purdon's  Digest,   '.54 


CHAP.    III.]         LIMITED  ADMINISTRATIONS.  108 

A  grant  of  administration  in  a  foreign  court,   as  for  example  at 
Paris,  is  not  taken  notice  of  in  our  courts  of  justice  (p ).  (1). 


[109]  Sect.   VI. 

Of  Administrations  to  iiitestate  seamen  and  marines. 

With  regard   to   the   administration  of  the   wages,  pay,  prize- 
money,  bounty-money,  or  allowance  of  money  of  such  petty  ofii- 

(/>)  Tom-ton  v.   Flower,  3  P.  Wins.  371.  Vid.  supr.  72. 


(1)  Letters  of  administration  granted  in  a  sister  state  are  a  sufficient  authority 
to  maintain  an  action  in  Pennsylvania;  and  suck  has  been  the  practice  without 
regard  to  the  particular  intestate  laws  of  the  state  where  they  have  been  grant- 
ed. .  MCullough  v.  Young,  1  Binn.  63.  4  Dall.  292.  The  provisions  of  the 
Act  of  1705,  in  relation  to  letters  of  administration  granted  out  of  the  province, 
has  uniformly  been  considered  not  to  extend  farther  than  to  the  provinces  of  this 
country  at  tlie  time  the  act  was  passed  ;  and  hence  in  Graeme  v.  Harris,  1  Dall. 
456,  it  was  held  that  letters  of  administration  granted  by  the  Archbishop  of  York 
were  not  a  sufficient  authority  to  maintain  an  action  in  this  state.  The  courts  of 
Virginia  and  Neiv  York  do  not  take  notice  of  letters  testamentary,  or  of  admin- 
istration granted  abroad,  or  out  of  the  state,  Dickinson,  adm.  v.  M'Craw,  4  Rand. 
Rep.  1.58.  Morrellv.  Dickey,  1  Johns.  Cha.  Rep.  153.  Doolittle  v.  Lewis,  7  Johns. 
Cha.  Rep.  45.  Nor  do  the  courts  of  New  Hampshire,  (Sabin  v.  Oilman,  Adams's 
Rep.  198,)  Connecticut,  (Perkins  v.  Williams,  2  Root's  Rep.  462.  Riley  v.  Mi- 
ley,  ChampUn  v.  Tdley,  3  Day's  Rep.  74.  303.  See  however  Nicholl  v.  Mum- 
ford,  Kirby's  Rep.  274.)  Massachusetts,  (Goodwin  v.  Jones,  3  Mass.  Rep.  514. 
Stephens  v.  Gaylord,  Langdon  v.  Potkr,  11  Mass.  Rep.  369.  Picquet  v.  Swan, 
3  Mason's  Rep.  469.)  Kentucky,  (Jackson  v.  Jeffries,  1  Marsh.  Rep.  88.)  Ohio, 
(Kerr  v.  Moon,  9  Wheat.  Rep.  565.)  or  the  District  of  Columbia,  (Fenwickv. 
Sears,  1  Cranch,  259.  Dixon's  Ex.  v.  Ramsey's  Ex.  3  Cranch,  319.)  Letters 
of  administration  granted  in  a  sister  state  are  not  sufficient  authority  to  maintain 
an  action  in  North  Carolina,  (Butts'  Mm.  v.  Price,  Cam.  &  Now.  68.  _  Anon. 
1  Hayw.  Rep.  355.)  though  probate  and  letters  testamentary  granted  in  ano- 
ther state  will  enable  executors  to  sue,  if  the  testator  was  an  inhabitant  of  the 
state  where  such  probate  was  granted.  Stephen  v.  Smart,  1  Carol.  Law.  Rep. 
471.  But  the  objection,  that  the  plaintiff  was  appointed  administrator  by  the 
authority  of  another  state,  must  be  pleaded  in  bar  or  abatement,  and  cannot 
be  taken  after  an  issue  on  the  merits.  Langdon  v.  Potter,  ChampUn  v.  Tdley. 
And  an  administrator  appointed  in  another  state  may  maintain  an  action  on  a 
judgment  recovered  by  him  in  the  courts  of  that  state,  because  he  may  sue  upon 
it  in  his  own  name.  Talmadge  v.  Chapel,  16  Mass.  Rep.  71.  So  an  executor 
or  administrator  of  a  creditor  in  another  state,  having  possession  of  a  bond  and 
mortgage  on  lands  situate  in  New  York,  may  lawfully,  it  seems,  receive  payment 
of  the  debt,  and  give  an  acquittance,  Doolittle  v.  Lewis,  7  Johns.  Cha.  Rep.  45,  as, 
it  also  seems,  he  may  for  any  voluntary  payment  to  him.  Williams  v.  Starrs, 
6  Johns.  Cha.  Rep.  353.  Stephens  v.  Gaylord.  And  where  an  administrator 
rum  testaments  annexo  of  a  person  who  was  domiciled  in  England  at  the  time  of 
his  death,  comes  into  Massachusetts,  and  takes  out  administration  from  the  probate 
office,  according  to  the  statute,  he  cannot  be  cited  before  the  judge  of  probate 
to  account  for  assets  received  by  him  in  England.  Selectmen  of  Boston  v.  Boy/s- 
lun,  2  Mass.  Rep.  384.  Dawes,  Judge,  &c.  v.  Boylston,  9  Mass.  Rep.  337.  Nor 
will  he  be  liable  to  any  action  brought  against  him  in  that  state,  so  as  to  subject 
the  real  estate  of  his  intestate  to  be  taken  in  execution.  Borden  v.  Borden, 
■1  Mass.  Rep,  67. 

Where  administration  is  taken  out  in  one  slate,  the  administrator  may  lie  called 
upon,  in  equity,  in  any  other  state,  to  account  for  the  assets,  by  a  creditor.  Evans 
v.   Uatem,9  Serg-le  llawle,  252.     {Bryan  v.  M'Oee,  2  Wash.  C.  C.  Rep.  337. 


109  OF  ADMINISTRATION  [BOOK    i 

cers,  and  seamen,  non-commissioned  officers  of  marines,  and  ma- 
rines, as  are  above-mentioned,  in  respect  of  services  in  his  Ma- 
jesty's navy  by  the  before-cited  stat.  55  Geo.  3.  c.  GO.,  it  is  en- 
acted, that  the  party  claiming  such  administration  shall  send  or 
give  in  a  note  or  letter  to  the  inspector  of  seamen's  wills,  stating  his 
place  of  abode,  and  the  parish  in  which  the  same  is  situate,  the 
name  of  the  deceased,  the  name  of  the  ship  or  ships  to  which  he 
belonged,  and  that  he  has  been  informed  of  his  death,  and  request- 
ing the  inspector  to  give  such  directions  as  may  enable  him  to 
procure  letters  of  administration  to  the  deceased  ;  upon  receipt 
whereof  the  inspector  shall  send  or  cause  to  be  sent,  by  course  of 
post,  under, cover  to  the  minister,  officiating  minister  or  curate  of 
the  parish  wherein  the  claimant  shall  reside,  a  petition  or  paper 
containing  a  list  of  the  degrees  of  kindred  to  the  tenth  degree  in- 
clusive, with  blanks  for  the  time  and  place  of  the  intestate's  birth., 
and  the  ship  he  belonged  to,  and  that  the  party  had  obtained  infor- 
mation of  his  death,  with  blanks  for  the  place  where,  and  the  time 
when  it  happened,  without  leaving  a  will,  to  the  best  of  the  party's 
knowledge  and  belief,  and  applying  to  the  inspector  for  a  certifi- 
cate, to  enable  such  party  to  obtain  letters  of  administration  to  the 
deceased's  effects,  with  also  a  blank  of  his  degree  of  kindred  ;  and 
[110]  stating  that  no  one,  to  the  best  of  his  knowledge  and  belief, 
was  of  a  nearer  degree  at  the  time  of  the  intestate's  death,  who 
died  (with  a  blank,  in  which  to  insert  whether)  bachelor  or  widow- 
er ;  to  which  form  shall  be  subjoined  a  blank  certificate,  to  be 
signed  by  two  reputable  housekeepers  of  the  parish  where  the 
party  applying  is  resident,  of  their  knowledge  of  him,  and  of 
their  belief  that  what  he  states  is  true  :  and. also  another  certificate 
to  be  signed  by  the  minister  of  the  parish,  and  two  of  the  church- 
wardens or  two  elders  of  the  same,  as  the  case  may  be,  certifying 
that  such  two  housekeepers  are  resident  in  the  parish,  and  of  good 
repute,  and  also  stating,  that  if  .the  party  applying  is  the  widow  of 
the  deceased,  she  must  forward  with  such  certificate  an  extract  from 
the  parish  register,  or  some  other  authentic  proof  of  her  marriage, 
and  containing  also  the  same  directions  as  annexed  to  the  second 
certificate  subjoined  to  the  above-mentioned  check  («),  in  regard 
to  proof  of  the  deceased's  death,  if  he  died  after  he  had  left  the 
naval  service,  in  regard  to  mentioning  the  name  of  a  proctor  to  be 
employed  in  obtaining  the  administration.:  and  that  the  applica- 
tion, when  filled  up  and  attested,  shall  be  sent  by  the  general  post 
under  cover,  directed  to  the  treasurer  or  paymaster  of  his  Majes- 
ty's navy,  London.  And  the  inspector  shall  at  the  same  time  send 
or  cause  to  be  sent  to  such  minister,  officiating  minister,  or  curate, 
a  letter,  acquainting  him  with  the  nature  of  the  claim  and  the  steps 
to  be  taken  thereon;  and  also  send  or  cause  to  be  sent,  in  like  man- 
ner, to  the  claimant  a  letter,  advising  him,  of  the  forwarding  of 
the  petition  or  paper  under  cover,  to  such    minister,  officiating 

O)  Supr.  92. 


CHAP.  111.]  TO  SEAMEN.  110 

minister  or  curate,  and  directing  him  to  take  such  steps  as  are  di- 
rected, for  the  purpose  of  substantiating  his  claim  to  the  satisfac- 
tion of  the  inspector;  and  upon  receipt  of  the  said  petition  or  pa- 
per and  letter,  the  minister,  officiating-minister  or  curate,  shall,  on 
being  applied  to  for  his  signature  to  the  paper,  examine  the  clai- 
mant, and  also  two  inhabitant  householders  of  the  parish  as  may 
be  disposed  to  sign  the  first  certificate  on  the  paper,  touching  the 
right  of  such  claimant  to  the  administration  to  the  effects  of  the 
intestate,  according  to  the  degree  of  relationship  stated  in  such 
petition,  and  being  satisfied  of  such  right,  the  person  claiming  such 
administration  shall  fill  up  or  cause  to  be  filled  up,  the  several  blanks 
in  the  first  part  of  the  paper,  according  as  the  truth  may  be,  and 
subscribe  the  same  in  the  presence  of  the  minister,  officiating-min- 
ister or  curate,  and  tl?e  two  inhabitant  householders  shall  also  sub- 
scribe the  first  certificate  on  the  paper  (the  blanks  therein  being 
first  filled  up  agreeably  to  the  truth)  in  the  like  presence;  for  which 
purposes  the  claimant  and  the  householders  shall  attend  at  such 
time  and  place,  as  the  minister,  officiating-minister  or  curate  shall 
appoint  ;  and  the  minister,  officiating-minister  or  curate  shall  sign 
the  second  certificate  upon  the  paper  (the  blanks  therein  and  in 
the  description  thereunto  subjoined,  being  first  filled  up  agreeably 
to  the  truth)  ;  and  the  claimant  shall,  before  his  examination,  or 
his  signing  the  petition  or  application,  pay  to  the  minister,  officiat- 
ing-minister or  curate,  a  fee  of  two  shillings  and  sixpence  for  his 
trouble  on  the  occasion  ;  and  the  said  paper  being  in  all  things 
completed  according  to  the  directions  therein  and  hereby  given, 
the  same  shall  be  returned  by  the  minister,  officiating-minister  or 
curate,  by  the  general  post,  addressed  to  the  treasurer  or  paymas- 
[111]  ter  of  his  Majesty's  navy,  London  ;  and  he  on  receiving  the 
same  shall  direct  the  inspector  to  examine  it,  and  make  such  inqui- 
ry relative  thereto  as  may  appear  to  him  necessary;  and,  if  he  shall 
be  satisfied,  to  make  out  a  certificate,  stating  the  application  of  the 
party  to  his  office,  containing  the  party's  description,  and  slating 
whether  he  is  sole  or  one  of  the  next  of  kin  of  the  deceased,  the 
original  place  of  residence  of  the  deceased,  and  whether  seaman 
or  marine,  and  the  name  of  the  ship  he  belonged  to,  and  that  he 
died  intestate,  and  whether  bachelor  or  widower,  together  with 
the  time  of  his  death  ;  and  that  it  appearing  that  no.  will  of  the  de- 
ceased has  been  lodged  in  the  office,  he  therefore  grants  such  ab- 
stract of  the  application,  and  certifies  that  he  believes  what  is  stated 
to  be  true  ;  and  that  such  party  may  obtain  letters  of  administra- 
tion to  the  effects  of  the  deceased,  which  appear  not  to  exceed  a 
sum  specified,  provided  such  party  is  otherwise  entitled  thereto  by 
law  :  to  which  certificate  there  shall  be  subjoined  a  notice,  that 
the  previous  commission  or  requisition  is  to  be  addressed  agreeably 
to  the  superscription  of  the  within  cover,  in  which  the  same  is  to 
be  enclosed  and  forwarded  by  the  proctor  ;  and  when  the  commis- 
[112]  sion  or  requisition  shall  be  returned  to  the  office,  it  will  be 
forwarded  to  him,  and  he  is  then  to  sue  out  letters  of  administra- 


J  12  OF  ADMINISTRATION  [BOOK  I. 

tion,  and  send  them  to  the  inspector,  with  his  charges  noted  there- 
on ;  and  then  this  certificate  the  inspector  .shall  sign,  and  address 
to  a  proctor  in  Doctors'  Commons,  and  shall  at  the  same  time  en- 
close therein  a  letter  addressed  to  the  ministers  and  churchwardens, 
or  ciders  (as  the  case  may  be),  of  the  parish  within  which  the  party 
then  resides,  franked  by  the  treasurer,  paymaster,  or  inspector,  in 
which  the  previous  commission  or  requisition  is  to  be  enclosed,  in- 
forming him  of  the  application  attested  by  him  and  the  two  church- 
wardens or  elders,  and  requiring  him  to  swear  the  party  accord- 
ingly, provided  he  answers  the  description  contained  in  such  com- 
mission or  requisition;  and  when  the  same  is  executed,  to  return 
it  to  the  treasurer  or  paymaster  of  his  Majesty's  navy,  London, 
and  to  specify  and  describe  the  receiver-general  of  the  land-tax, 
collector  of  the  customs  or  of  the  excise,  or  the  clerk  of  the  cheque, 
whose  abode  is  nearest  to  the  party  applying,  when  such  person 
will  be  directed  to  pay  him  the  wages  due  to  the  deceased;  and  the 
proctor  shall,  immediately  on  receipt  of  such  certificate  enclosed  in 
such  letter,  sue  out  the  previous  commission  or  requisition,  and  en- 
close it,  with  instructions  for  executing  the  same,  in  such  letter, 
and  shall  transmit  the  letter  by  the  general  post  to  the  minister 
[113]  agreeably  to  the  address  put  thereon  by  the  treasurer  or  pay- 
master of  the  navy,  or  the  inspector. 

If  the  minister,  officiating-minister  or  curate,  shall  reject  the  pe- 
tition or  paper  for  want  of  proof  to  his  satisfaction  of  the  claimant 
being  the  person  entitled  to  letters  of  administration  of  the  de- 
ceased's effects,  such  minister,  officiating-minister  or  curate,  shall 
state  his  reasons  for  such  rejection  on  the  petition  or  paper,  and 
return  the  same,  addressed  to  the  treasurer  or  to  the  paymaster  of 
the  navy;  and  in  case  no  application  shall  be  made  to  the  minister, 
officiating-minister  or  curate,  by  the  claimant,  or  no  effectual  steps 
shall  be  taken  by  such  claimant,  so  as  to  complete  the  petition  or 
paper,  and  the  certificates  thereon,  within  the  space  of  two  calen- 
dar months  from  the  date  of  the  inspector's  letter  accompanying 
such  petition  or  paper,  the  minister,  officiating-minister  or  curate, 
shall  at  the  expiration  of  that  time  return  the  petition  or  paper, 
addressed  to  the  treasurer  or  to  the  paymaster  of  the  navy,  with 
his  reason  for  doing  so  noted  thereon. 

The  minister  shall,  immediately  upon  the  receipt  of  such  letter, 
with  the  previous  commission  or  requisition  or  other  instrument 
enclosed  therein,  take  such  steps  as  to  him  may  seem  proper  or 
necessary  for  procuring  the  execution  of  such  previous  commission 
or  requisition,  or  other  instrument  transmitted  by  the  proctor  to 
he  executed;  and  being  executed,  he  shall  transmit  the  same  to  the 
treasurer  or  to  the  paymaster  of  his  Majesty's  navy,  London;  who 
shall,  immediately  upon  the  receipt  thereof,  send  the  previous  com- 
mission or  requisition,  or  other  legal  instrument  executed  by  the 
person  applying  for  the  administration,  to  the  proctor  employed  in 
Doctors'  Commons,  who  shall  forthwith  sue  out  and  procure  letters 
of  administration  in  favour  ol  the  person  so  applying  for  the  samc? 


CHAP.  1 1  I.J  TO  SEAMEN.  113 

iii  the  manner  and  form  above-mentioned,  to  the  estate  and  effects 
of  the  intestate. 

As  soon  as  any  letters  of  administration,  or  probates  of  wills,  or 
letters  of  administration  with  will  annexed,  have  been  obtained, 
and  passed  the  seal  of  the  proper  court  in  the  manner  directed,  the 
proctor  who  sued  them  out  shall  immediately  send  the  same,  ad- 
dressed to  the  treasurer  or  to  the  paymaster  of  his  Majesty's  navy, 
together  with  a  copy  of  the  will,  and  an  account  of  his  charges 
and  expenses  in  obtaining  the  same  ;  which  shall  not  exceed  the 
sum  or  sums  thereinafter  specified;  and  the  treasurer  or  paymaster 
of  his  Majesty's  navy,  upon  receiving  such  letters  of  administra- 
tion, or  probates  of  wills,  or  letters  of  administration  with  will 
annexed,  shall  direct  the  inspector  of  seamen's  wills  to  issue  a  check 
containing  the  heads  thereof;  and  the  inspector  shall  note  thereon 
the  amount  of  the  proctor's  charges  and  expences,  provided  the 
same  shall  be  at  and  after  the  rates  allowed  to  be  charged;  and 
likewise  specify  and  describe  upon  the  said  check,  the  revenue 
officer  or  clerk  of  the  cheque  residing  nearest  to  the  administrator 
or  executor,  so  to  be  named  in  such  check,  if  such  communication 
shall  have  been  made  to  him;  which  check  so  prepared,  shall  be 
delivered  over  by  him  to  the  administrator  or  executor,  together 
with  the.  copy  of  the  will  transmitted  to  him  by  the  proctor,  the 
copy  being  first  stamped  by  the  inspector,  if  the  administrator,  or 
the  administrator  with  will  annexed,  or  the  executor,  shall  be  pre- 
sent or  demand  the  same  in  person;  but  if  he  shall  not  be  present, 
but  be  and  reside  at  a  distance,  then  the  inspector  shall  deliver  such 
check  and  such  copy  of  will  to  the  deputy-paymaster. 

No  proctor  shall  deliver  any  letters  of  administration,  probate 
of  will,  or  letters  of  administration  with  will  annexed,  to  any  person 
but  the  treasurer  or  paymaster  of  the  navy,  or  the  inspector  of 
seamen's  wills,  under  a  penalty  of  one  hundred  pounds. 

For  further  penalties  upon  a  proctor  acting  contrary  to  the  pro- 
visions of  the  act,  vid.  supr.  64. 

The  statute  also  prescribes  similar  regulations  in  regard  to  the 
grant  of  administration  to  a  creditor  of- such  intestate. 


[114]  Sect.   VII. 

Of  administrations  in  case  of  the  death  of  the  administrator ;, 
or  of  the  executor  intestate. 

I  am  now  to  consider  the  effect  of  the  death  of  an  executor  or 
administrator  with  regard  to  the  administration. 

Where  administration  is  granted  to  two,  and  one  dies,  the  sur- 
vivor shall  be  sole  administrator  («)  ;  for  it  is  not  like  a  letter  of 
attorney  to  two,  where  by  the  death  of  one,  the  authority  ceases, 

{u)  4  Burn.   Keel.  L.  241,     Hudson  v.  Hudson,  Ca.  Temp.  Talb.  127. 


Hi  OF  ADMINISTRATION  ON  DEATH  [BOOK    I. 

hut  it  is  an  oflice  analogous  to  that  of  an  executor,  which  sur- 
vives (b). 

An  administrator  is  merely  the  officer  of  the  ordinary,  prescrib- 
ed to  him  by  act  of  parliament,  in  whom  the  deceased  has  reposed 
no  trust;  and  therefore,  on  the  death  of  that  officer,  it  results  to  the 
ordinary  to  appoint  another.  .  And  if  A.'s  executor  die  intestate, 
the  administrator  of  such  executor  has  clearly  no  privity  or  relation 
to  A.,  since  he  is  commissioned  to  administer  the  effects  only  of  the 
[115]  intestate  executor,  and  not  of  the  original  testator.  In  both 
these  cases,  therefore,  it  is  necessary  for  the  ordinary  to  commit 
another  administration  (c). 

But,  with  regard  to  the  species  of  administration  to  be  thus  grant- 
ed, a  distinction  arises  between  the  case  where  the  executor  or  next 
of  kin  had  before  his  death  taken  out  probate  or  letters  of  admin- 
istration, and  where  he  had  omitted  to  do  so. 

If  an  executor  die  before  probate,  his  executor  cannot  prove  or 
take  on  himself  the  execution  of  the  will  of  the  original  testator, 
because  he  is  not  thereby  named  executor  to  such  testator.  He 
only  can  prove  the  will  who  by  the  will  is  constituted  executor. 
The  omission  of  the  first  executor  to  prove  the  same  on  his  death 
determines,  although  it  does  not  avoid  the  executorship,  or  vacate 
the  acts  which  he  has  performed  in  such  character  (d).      •  . 

When  this  case  occurs,  an  administration  must  be  granted,  and 
the  grantee  shall  be  the  representative  of  the  party  who  originally 
died  ;  but  it  shall  be  an  immediate  administration,  that  is,  without 
making  mention  of  the  executor,  whether  he  did  in  point  of  fact 
[11G]  administer,  or  not;  because  administering  is  an  act  in  j)ais, 
of  which  the  spiritual  court  cannot  take  notice.  The  ordinary 
must  commit  administration,  as  it  appears  to  him  judicially;  and  it 
can  thus  appear  only  by  the  probate  (e). 

In  like  manner,  if  A.  die  intestate,  and  B.  be  entitled  to  admi- 
nister, and  die  before  he  takeout  administration,  an  immediate  ad- 
ministration shall  be  committed  :  in  such  case  it  shall  be  granted 
to  the  representatives  of  B.  if  the  only  party  in  distribution,  in 
preference  to  the  representatives  of  A.,  because  by  the  statute  of 
distributions  B.  had  a  vested  interest,  and  in  such  grant  the  eccle- 
siastical court  regards  the  property;  and  therefore  if  a  son  die  in- 
testate without  wife  or  child,  leaving  a  father,  and  the  father  shall 
himself  die  before  he  takes  out  administration,  it  shall  he  commit- 
ted to  his  representatives  (f);  and  so  it  has  been  held,  in  case  the 
wife  die  intestate,  and  the  husband  die  before  he  takes  out  admi- 

(/;)  3  Bac.  Abr.  56.  Adams  v.  Buck-  pi.    4.     Shep.    Touch.    464.     Istcd  v. 

land,  2  Vern.  514.     11  Vin.  Abr.   69.  Stanley,  Dyer,  372.     Comber's    Case, 

Com.   Dig-.  Admon.  B.  7.  1  P.  Wms.  767. 

(c)    Com.    Dig.    Admon.    B.    6.     4         (e)  Wankford  v.  Wankford,  1  Salk. 

Burn.    Eccles.    L.    241.     1  Roll.  Abr.  308.     3  Bac.  Abr.  19. 
907.     2  Bl.  Com.  506.  (f)   11  Vin.  Abr.  88.  pi.  25.    Squib 

((f)    11    Vin.    Abr.    67.     90.       111.  v.  Wyn,   1    P.    Wms.    381.     Yid.  also 

Wankford  v.    Wankford,  1   Salk.  308,  Com.  Dig-.    Admon.  B.  6.  Yid.  Earl  of 

309.     Ilayton  v.  Wolfe,  Cro.  Jac,  614.  Winchelsea  v.  Norcliflc,  1  Vern.  403. 


CHAP.   III.]  OF  ADMINISTRATOR.  116 

nistration,  it  shall  be  granted  to  the  representatives  of  the  husband; 
but  it  is  now  settled  that  the  court  is  in  the  latter  instance  bound 
by  stat.  31  E.  Q.  to  grant  administration  to  the  next' of  kin  of 
the  wife,  and  then  he  shall  be  a  trustee  in  equity  for  the  husband's 
representatives  (g). 

If  the  deceased  executor  had  taken  out  probate,  or  the  de- 
[117]  ceased's  next  of  kin  administration,  then  another  species  of 
administration,  which  hath  not  hitherto  been  mentioned,  becomes 
necessary,  namely,' an  administration  de  bonis  -non,  that  is,  of  the 
goods  of  the  deceased  left  unad ministered  by  the  former  executor 
or  administrator,  by  the  grant  of  which,  such  administrator  de  bo- 
nis non  becomes  the  only  personal  representative  of  the  party  ori- 
ginally deceased  (A).  (1) 

Administration  of  either  species  is,  generally  speaking,  granted 
to  the  next  of  kin  of  such  party.  But  in  case  there  be  a  residua- 
ry legatee,  it  shall  be  granted  to  him  in  preference  to  such  next  of 
kin  on  the  principle  above  stated,  because  the  next  of  kin  has  then 
no  interest  in  the  property  (i).  Thus  where  A.  made  C.  execu- 
tor and  residuary  legatee,  and  B.  made  C.  executor  without  giv- 
ing him  the  surplus,  and  C.  afterwards  died  intestate,  it  was  held, 
that  the  administrator  of  C.  should  be  administrator  de  bonis  non 
of  A.,  but  that  the  next  of  kin  of  B.  should  be  administrator  de 
bonis  non  of  B.  (k).  If  the  residue  be  bequeathed  to  several  per- 
sons, such  administration  may  be  granted  to  all  or  either  of  them, 
as  in  the  case  of  an  original  administrator,  although  there  be  no 
present  residue  (/).  But  for  such  purpose  there  must  be  a  complete 
[118]  disposition  of  the  property  (m).  If  the  executor  be  him- 
self residuary  legatee,  although  he  refused,  o~,  before  he  proved 
the  will,  died  intestate,  an  immediate  administration  with  the 
will  annexed  shall  be  granted  to  his  administrator  (n).  If  an  ex- 
ecutor be  residuary  legatee,  although  he  refused,  or  died  be/ore 
probate,  leaving  a  ivill,  his  executor  will  be  entitled  to  such  ad- 
ministration (o).     If  an  executor  and  residuary  legatee,  after  pro- 

(g)  Elliot    v.    Collier,   3   Atk.    526.  56.     3  Bac.  Abr.  19. 

S.   C.   1  Ves.   16.   and  1  Wils.   169.    4  (Jt)   11  Vin.  Abr.  87.     Farrington  v. 

Bum.  Keel.  L.  235.    11  Vin.  Abr.  88,  Knightly,  Free.  Chan.  567. 

pi.  27.  Squib  v.  Wvn,  1  P.  Wins.  382.  (/)  Com.  Dig.  Admon.  B.    6.     Vid. 

note  1.   Vid.  infr.  217.  Thomas  v.  Butler,  3  Lev.  56. 

(h)    11    Vin.    Abr.    111.     Attorney-  (w)  11  Vin.  Abr.  89.     Jo.  225. 

General  v.  Hooker,'  2    P.  Wmp.    340.  (ra)  11    Vin.    Abr.    88.    92.    2  Roll. 

Com.  Dig.   Admon.  B.  1.     Plovd.  279.  Rep.  158. 

3  Bac.  Abr.   19.-  (o)  Com.  Dig.  Admon.  B.   6.    Isted 

(/)  Com.  Dig.  Admon  B.  6.  Thomas  v.   Stanley,  Dy.  372. 
v.  Butler,  1  Ventr.  219.     S.  C  2  Lev. 


(1)  in  Brattle  v.  Gustin,  1  Root,  425,  letters  of  administration  were  revoked  at 
the  instance  of  a  creditor,  who  alleged  there  was  estate  sufficient  to  pay  his  debt 
(a  judgment),  and  administration  'de  bonis  non  granted.  And  the  distribution  of 
the  estate  is  no  objection  to  its  being  granted  upon  the  application  of  a  creditor. 


Brattle  v.  Converse,  1  Root,  174. 

•  11 


118  ADMINISTRATION,  HOW  GRANTED.  [BOOK  I. 

bate,  die  intestate,  administration  de  bonis  noti,  with  the  will  an- 
nexed of  the  testator,  shall  be  granted  to  the  administrator  of  such 
executor.  If  a  feme  covert  executrix  die  intestate,  then  as  to  the 
effects  which  she  had  in  that  capacity,  administration  shall  be  grant- 
ed to  the  residuary  legatee  if  any,  or  to  the  next  of  kin  of  the  tes- 
tator. If  she  were  herself  residuary  legatee,  it  shall  be  granted 
to  her  husband  {p). 

Where  there  are  two  executors,  of  whom  o.nly  one  proves  and 
dies,  and  then  the  other  renounces,  the  executors  of  the  acting  ex- 
ecutor have  no  concern  with  the  administration  of  the  goods  unad- 
ministered,  but  the  same  shall  be  granted  to  the  next  of  kin,  or 
residuary  legatee  of  the  first  testator  {q). 

[119]  So,  if  there  be  two  executors,  one  of  whom  appoints  an 
executor,  and  dies,  and  the  survivor  dies  intestate,  the  executor  of 
the  executor  shall  not  intermeddle  with  the  first  testator's  effects  ; 
for  the  power  of  his  testator  was  determined  by  his  death,  and  the 
executorship  vested  solely  in  the  other  executor  as  survivor. 

So  where  an  administrator  is  appointed  during  the  minority  of 
the  executor  of  an  executor,  he  has  no  authority  to  intermeddle 
with  the  effects  of  the  original  testator.  The  ordinary,  in  either 
case,  shall  commit  administration  de  bonis  non  to  the  next  of  kin 
or  residuary  legatee  of  the  original  testator  (r). 


Sect.  VIII. 


How  administration  shall  be  granted — when  void — when  void- 
able— of  repealing  the  same — how  a  repeal  affects  mesne 
acts. 

Administration  is  generally  granted  by  writing  under  seal  ;  it 
may  also  be  committed  by  entry  in  the  registry,  without  letters 
sub  sigillo  ;  but  it  cannot  be  granted  by  parol  (a).  (1) 

[120]  In  letters  of  administration  the  style  of  jurisdiction,  as 
well  as  the  name  of  the  ordinary,  shall  be  inserted  [b). 

A  party  may  refuse  the  office,  nor  can  the  ordinary  compel  him 
to  accept  it  (c). 

Where  administration  is  improperly  granted,  a  distinction  oc- 

(p)  11  Vin.  Abr.  89.   91.  111.  Rach-  (r)  11  Vin.  Abr.  67.  in  note  89.  Off. 

field  v.  Careless,  2  P.  Wms.   161.     4  Ex.  101.  Limmer  v*  Every,  Cro.  Eliz. 

Burn.  Eccl.  L.  236.     3  Salk.  21.     11  211.     3  Bac.  Abr.   13. 

Vin.  Abr.  90,91.  95.  108.     Vanthieu-  (a)  11  Vin  Abr.  70.  Anon.   1  Show, 

son   v.    Vanthieuson,    Fitzgibb.     203.  408,  409.     Godolph.  231.     Com.  Dig-. 

Johnson's  case,  Poph.  106.  Admon.  B.  7. 

(q)  Com.  Dig.  Admon.  B.  1.  House  (6)  4  Burn.  Eccl.  L.  273. 

v.  Lord  Petre,  Salk.  311.  (c)  Id.  233. 

(1)  As  to  the  manner  of  granting-  administration  in  Pennsylvania,  see  ante, 
page  83,  note  (2). 


CHAP.    III.]  WHEN  VOIDABLE.  120 

curs  between  administrations  which  are  void,  and  such  as  are  only 
voidable. 

If  there  be  an  executor,  and  administration  be  granted  before 
probate  and  refusal,  it  shall  be  void  on  the  will's  being  afterwards 
proved,  although  the  will  were  suppressed,  or  its  existence  were 
unknown  (d),  or  it  were  dubious  who  was  executor  (e),  or  he  were 
concealed  or  abroad  (/*)  at  the  time  of  granting  the  administration. 
Or,  if  there  be  two  executors,  one  of  whom  proves  the  will,  and 
the  other  refuses,  and  he  who  proved  the  will  dies,  and  adminis- 
tration is  granted  before  the  refusal  of  the  survivor,  subsequently 
to  the  death  of  his  co-executor;  or  if  granted  before  the  refusal  of 
the  executor,  although  he  afterwards  refuse  (g),  such  administra- 
tion shall  be  void.  (1)  It  shall  also  be  void  if  granted  on  the  ground 
of  the  executor's  becoming  a  bankrupt,  as  it  was  before  the  stat. 
[121]  38  Geo.  3.  c.  S7.,  if  committed  durante  minorit ate,  where 
the  infant  executor  had  attained  the  age  of  seventeen  (A).  It  shall 
also  be  void  if  granted  by  an  incompetent  authority,  as  by  a  bish- 
op, where  the  intestate  had  bona  notabilia  {i),  or  by  an  archbish- 
op, of  effects  in  another  province  (k). 

In  all  these  instances  the  administration  is  a  mere  nullity.  The 
executor's  interest  the  ordinary  is  incapable  of  divesting.  But 
there  is  another  description  of  cases,  where  administration  is  not 
void,  but  voidable  only  by  the  act  of  the  spiritual  court,  as  if  ad- 
ministration be  granted  to  a  party  not  next  of  kin  (/),  or  to  one  of  kin 
together  with  one  not  of  kin,  as  to  a  sister  and  her  husband  (m) ; 
or  to  the  wife's  next  of  kin  instead  of  the  husband  (n)  ;  or  if  it  be 
granted  on  the' refusal  of  an  executor  who  had  before  administer- 
ed (o)  ;  or  if  it  be  granted,  non  vocatis  jure  vocandis,  without 
citing  the  necessary  parties  (p)  ;  or  to  a  stranger  (q)  ;  or  by  fraud 

(rf)  Com.  Dig.  Admon.  B.  1.  Plowd.  (/)  Com.  Dig.  Admon.  B.  6.  Black- 

279.  262.  borough    v.    Davis,   Salk.     38.     1    P. 

(e)  Com.  Dig.  Admon.  B.  1.  Robin's  Wms.  43.   S.  C. 

Case,  Moore,  636.  (m)  Com.  Dig.  Admon.  B.  8.  Al.  36. 

(/)    11   Vin.    Ahr.    68.     Abram.  v.  (n)  11  Vin.  Abr.  85.    Anon.  1  Sid. 

Cunningham,  2  Lev.   182.  409. 

(g)  Com.  Dig.  Admon.  B.  2.  B.  10.  (o)  Com.  Dig.  Admon.  B.  8.     Off. 

Abram'   v.  Cunningham,    2   Lev.    182.  Ex.  40,  41. 

Aid.   Anon.   1  Show.  411.  (p)  11    Vin.  Abr.   115.    Com.  Dig. 

(h)  11  Vin.  Abr.  99.     5  Co.  29  b.  Admon.  B.   8.  Ravenscroft  v.  Ravens- 

(i)  3  Bac.   Abr.  36.     Com.  Dig.  Ad-  croft,  1  Lev.  305. 

mon.  B.  3.     Blackborough    v.    Davis,  (q)  11  Vin.  Abr.  95.  Wilson  v.  Pate- 

1  Salk.  39.   1  P.  Wms.  44.  767.   S.  C.  man,  Moore  396. 

(&)  Allison  v.  Dickenson,  Hard.  216. 

(1)  In  Massachusetts,  by  the  10th  sect,  of  the  Act  of  9th  March,  1784,  admin- 
istration originally  granted  upon  the  estate  of  any  deceased  person,  after  the  ex- 
piration of  twenty  years  from  the  death  of  such  person  is  ipso  facto  void,  and  the 
defendant  in  an  action  brought  by  any  one  to  whom  administration  has  been 
granted  after  such  period  of  twenty  years,  may  plead,  that  the  plaintiff  is  not,  nor 
t-ver  wns  administrator,      Wales  v.    Willard,  2  Mass.  Rep.   121. 


121  WHEN  VOIDABLE.  [BOOK  I. 

and  misrepresentation,  though  otherwise  duly  granted  (r),  (1)  as 
where  the  grantee  by  false  suggestions  prevented  a  party  in  equal 
decree  from  applying;  of  in  case  administration  be  granted  in  con- 
[122]  sequence  of  the  incapacity  of  the  next  of  kin,  and  the  incapaci- 
ty be  removed  (s);  or  if  the  grantee  shall  become  non  compos  men- 
tis, or  otherwise  incapable  (t)  ;  or  if  it  be  granted  to  a  creditor  be- 
fore renunciation  of  the  next  of  kin  (u)  ;  it  is  not  void,  but  void- 
able, and  may  be  repealed.  (2) 

If  there  be  a  residuary  legatee,  and  administration  be  granted  to 
the  next  of  kin,  though  not  void,  it  may  also  be  repealed,  whether 
there  be  any  present  residue  or  not  (w). 

Although  a  feme  covert  die  entitled  to  several  debts  due  to  her 
before  marriage;  which  by  law  do  not  belong  to  the  husband,  and 
her  next  of  kin  appear,  and  take  out  administration,  it  shall  be  re- 
pealed, and  administration  granted  to  the  husband  (x). 

If  there  be  two  grants  of  administration,  one  by  the  metropoli- 
tan, and  the  other  by  the  bishop,  when  there  are  not  bona  nota- 
bilia,  the  prerogative  administration  may  be  repealed  (y). 

At  common  law  the  ordinary  might  repeal  an  administration  at 
his  pleasure,  but  now,  since  the  stat.  21  H.  8.,  if  administration  be 
[123]  regularly  granted  to  the  next  of  kin,  according  to  the  pro- 
visions of  the  same,  the  ordinary  has  no  such  discretion.  If  he  as- 
sign a  cause  for  a  repeal,  the  temporal  courts  are  to  judge  of  its 
sufficiency  (z).  Thus  it  was  held,  that  where  the  ordinary  had 
elected  to  grant  administration  to  the  father,  he  had  no  power  of 
repealing  the  administration  at  the  suit  of  a  party  alleging  herself 
to  be  the  widow  («). 

So  where  administration  was  granted  to  a  sister,  a  married  wo- 
man, pending  a  caveat  entered  by  the  brother,  on  appeal  it  was 
adjudged  that  the  administration  should  not  be  revoked  at  his 
suit  (b). 

And  where  administration  was  granted  to  the  younger  brother, 
and  the  elder  sued  to  repeal  it,  the  decision  was  the  same;  but  in 
that  case  it  was  intimated  it  would  have  been  dif^rent  if  the  ad- 

(>•)  11  Vin.  Abr.  114.  117.  Harrison  Dubois  v.  Trant,  12  Mod.  433. 

v.  Mitchell,  Fitzgibb.  303.  (y)   11  Vin.  Abr.  114.  Aliens  v.  An- 

(s)  11  Vin.  Abr.  115.   Offley  v.  Best,  drews,  Cro.  Eliz.  283.     Cora.  Dig.  Ad- 

1   Sid.  373.  mon.  B.  8. 

(/)  11  Vin.   Abr.   115,  116.  (z)  11  Vin.  Abr.  114.    4  Burn.  Eccl. 

(u)  Com.  Dig.  Admon.  B.  6.  Black-  L.  248,  249.     Com.  Dig.  Admon.  B.  8. 

borough  v.  Davis,  1  Salk.  38.   4  Burn.  Blackborough  v.  Davis,  1  P.  Wms.  42. 

Eccl.  L.  249.     Harrison    v.    Weldon,  sed  vid.  Skinner,  156. 

Stra.  911.  (a)  Sand's  case,  Raym.  93.     S.  C.  3 

(u>)  Com.  Dig.  Admon.  B.  8.   Thorn-  Salk.   22.     11  Vin.  Abr.  115.     S.  C.  1 

son  v.  Butler,  2  Lev.  56%     1  Ventr.  219.  Kebl.  667.  6S3.     S.  C.  1  Sid.  179. 

S.  C.  (b)  11  Vin.  Abr.  115.    Offlev  v.  Best, 

O;  11   Vin.   Abr.   92.    in   nrfte   116.  1  Lev.  186. 

(1)  Shaufflcr  v.  Sloever,  Mm.  4  Serg.  &  Rawle,  202.  Observe  the  facts  of 
the  case. 

(2)  See  Frazier  v.  Griffith,  8  Cranch,  9.    Royal  v.  Ej>]>es,  2  Munf.  Kep.  479. 


CHAT.    III.]  OF  REPEALING  THE  GRANT.  123 

ministration  had  been  granted  pending  a  caveat  (c).  Nor,  it  admi- 
nistration be  granted  to  a  creditor,  and  afterwards  a  creditor  to  a 
larger  amount  appear,  shall  it  be  revoked  for  him  (d).  So  where 
administration  during  the  infancy  of  the  intestate's  sister  was  com- 
[124]  mitted  to  the  great-grandmother,  and  though  the  grandfather, 
the  plaintiff  in  prohibition,  suggested  that  the  administration  was 
granted  by  surprise,  and  that,  as  he  was  nearer  of  kin,  it  ought  to 
be  granted  to  him;  the  court  thought,  inthis  instance,  propinquity  to 
be  no  ground  of  preference,  and,  since  the  ordinary  had  no  power 
at  common  law  to  grant  such  administration  in  the  case  of  an  infant 
next  of  kin,  but  only  in  that  of  an  infant  executor,  having  once 
executed  his  authority,  the  grant  ought  not  to  be  repealed  (e).  So 
where  A.,  an  infant,  was  made  executor  and  residuary  legatee,  and 
if  he  died  under  age,  then  B.,  another  infant,  was  appointed  resi- 
duary legatee,  and  on  the  like  contingency,  the  residue  was  be- 
queathed to  C. ;  administration  during  the  minority  of  A.  was 
granted  to  M.  his  mother;  A.  died  intestate  under  age,  B.  was 
still  an  infant;  and  on  the  question  whether  the  administration 
might  be  repealed  and  granted  to  C,  the  court  seemed  to  be  of 
opinion,  that  the  ordinary  had  executed  his  authority,  and  that  M. 
should  not  be  divested  of  the  administration  during  the  infancy 
of  B.  (/). 

So  also  administration  de  bonis  no?i,  with  the  will  annexed, 
granted  to  one,  where  two  had  equal  right,  is  good,  and  shall  not 
be  revoked  (g). 

[125]  But,  in  general,  if  administration  be  granted  to  a  wrong 
party,  in  such  case  the  ordinary  may  repeal  it,  and  grant  it  to  ano- 
ther, for  he  has  not  executed  his  authority,  and  it  is  a  power  inci- 
dent to  every  court  to  rectify  its  errors  (h).  (1) 

Therefore,  where  a  feme  covert  has  died  intestate,  and'her  next 
of  kin  had  obtained  administration,  it  was  adjudged  that  it  should 
be  repealed  at  the  suit  of  the  husband,  because  the  ordinary  had  no 
power  or  election  to  grant  it  to  any  other  than  to  him  (i).: 

A  person  in  possession  of  an  administration,  is  not  bound  to 
propound  his  interest  till  the  party  calling  in  question  the  grant 
ljas  first  propounded  and  proved  his  (&). 

(c)  11  Yin.  Abr.  116.     Ayliffe  V.  Ay-     Trant,  12  Mod.  436,  438. 

lifte,  2  Kcbl.  812.    Harrison  v.  Mitchell,         (g)  11  Yin.    Abr.    116.      Taylor  v. 

Fitzg-ib.  303,  Shore,  2  Jo.  161. 

(d)  11  Yin.  Abr.  116.  Dubois  v.  (A)  11  Yin.  Abr.  114.  4  Burn.  Eccl. 
Trant,  12  Mod.  438.  L.  248,  249.    Com.  Dig-.  Admon.  B.  8. 

(e)  11  Yin.  Abr.  100,  116.  Ld.  Gran-  Blackburn  v.  Davis,  1  P.  Wms.  42. 
dison  v..  Countess  of  Dover,    3  Mod.  sed  vid.  Skinner,  156. 

23,  25.  '  Ld.   Grandison  v.  Countess  of        (/)  11  Yin.  Abr.  116.    4  Burn.  Eccl. 
Devon,    Skin.     155.      Yid.    Sadler   v.     L.  248.     Sand's  Case,  3  Salk.   22. 
Daniel,  10  Mod.   21.  (&)  Dabbs  v.  Chisman,  1  Phill.  Rep. 


• 


(/)  11  Yin.   Abr.  116.      Dubois  v.     155.     Hibben   v.    Calemberg1,   ib.  166. 


(1)  The  Register's  court  has  a  right  to  revoke  letters  of  administration  where 
they  have  issued  improperly,  and  direct  new  letters  to  issue  to  the  proper  person. 
Stocver  \.  T^tdwig,  4  Sehr  8c  Rawlc,  201. 


125  OF  REPEALING  THE  GRANT.  [BOOK  I. 

If  the  administration  be  repealed  for  want  of  form  in  the  grant, 
in  such  case  the  ordinary  must  regrant  it  to  the  same  party,  al- 
though there  be  others  in  equal  degree  (/). 

If  administration  be  repealed  quia  improvide,  that  is,  where,  on 
a  false  suggestion  in  respect  to  the  time  of  the  intestate's  death,  it 
issued  before  the  expiration  of  a  fortnight  from  that  event;  or 
where  the  court  on  committing  it  took  security  inadequate  to  the 
value  of  the  property,  it  shall  be  granted  to  the  same  person  (m). 

Nor  can  the  ordinary  revoke  the  grant  on  account  of  abuse,  al- 
[126]  though  the  letters  were  issued  after  a  caveat  entered,  for  he 
ought  to  take  sufficient  caution  in  the  first  instance  to  prevent  mal- 
administration [n).  Nor  can  he  revoke  it  on  the  administrator's 
omission  to  bring  in  an  inventory  and  account  (0).    . 

If  the  grant  regularly  issue,  and  subsequent  letters  of  adminis- 
tration be  obtained  by  collusion,  such  subsequent  letters  are  void, 
and  shall  not  repeal  the  former  administration  (p). 

Some  authorities  maintain,  that  if  the  ordinary  commit  adminis- 
tration to  the  wrong  party,  and  then  commit  it  to  the  right,  the  se- 
cond grant  is  a  repeal  of  the  first  without  any  sentence  of  revoca- 
tion (q);  but  in  other  cases  it  is  held,  that  the  first  is  not  avoided 
except  by  judicial  sentence  (r).  And  the  practice  is,  to  call  in 
and  revoke  the  first  administration  before  the  second  is  granted. 
But  after  an  administration  by  an  archbishop,  if  the  bishop  to  whom 
it  belongs  grant  administration  and  then  the  first  administration  be 
repealed,  the  administration  granted  by  the  bishop  before  the  re- 
peal shall  stand  good  (.?). 

So  in  all  cases  where  the  first  administration  is  repealed,  the  se- 
[127]  cond  shall  be  valid,  though  committed  after  the  grant  of  the 
first,  and  before  the  repeal  of  it  (t). 

If  the  ecclesiastical  courts,  in  the  granting  or  repealing  of  admi- 
nistrations, shall  transgress  the  bounds  which  the  law  prescribes  to 
them,  a  prohibition  from  the  temporal  courts  shall  be  awarded,  as  in 
the  case  above-mentioned,  where  the  ordinary  has  granted  a  regu- 
lar administration,  and  is  proceeding  to  repeal  it  on  insufficient 
grounds,  such  as  mal-administration  (w),  or  that  the  letters  issued 
after  a  caveat  entered  (v):  but  no  prohibition  to  the  ecclesiastical 
courts  shall  issue  on  suggestion,  that  they  are  about  to  repeal  an  ad- 
ministration granted  by  surprise,  or  that  they  refused  to  commit 
the  administration  to  the  intestate's  next  of  kin,  but  were  proceed- 
CZ)  11  Yin.  Abr.  115.  Offley  v.  Best,  (/•)  11  Vin.  Abr.  115.  in  note.  Pratt 
1   Sid.  293.  v.  Stocke,  Cro.  Eliz.  315. 

(m)  Com.  Dig.  Admon.  B.  3.  Offley  (s)  Com.  Dig.  Admon.  B.  3,  8.  Co. 
v.  Best,  1  Sid.  293.  135  1). 

(n)  11  Vin.  Abr.  115.  Com.  Dig.  Ad-         (t)   Com.  Dig.  Admon.  B.  3.   Vid.  2 
mon.  B.  8.   Thomas  v.  Butler,  1  Ventr.     Brownl.   119. 
J 19.  (u)  Thomas  v.  Butler,  1  Ventr.  219. 

(0)  11  Vin.   Abr.   116.     Sty.  102.         Al.  56". 

O)   11   Vin.    Abr.    114.      3  Co.  78  b.  (v)  Offley  v.  Best,  1  Lev.  186.    Dub. 

{(j)  11  Vin.  Abr.  114.  4  Burn  Eccl.  S.  C.  1  Sid.  371.  1  Lev.  187.  &  vid. 
L.   249.  sujir. 


CHAP.   III.]  OF  PROHIBITION.  127 

ing  to  grant  it  to  another,  for  the  point,  who  is  in  fact  next  of  kin, 
is  of  spiritual  cognisance,  and  must  be  contested  before  the  spiritual 
jurisdiction  (w). 

How  far  the  repeal  of  an  administration  affects  the  intermediate 
acts  of  the  former  administrator,  remains  now  to  be  considered. 

And  here  we  must  again  recur  to  the  distinction  between  such 
[128]  admininistrations  as  are  void,  and  such  as  are  only  voidable. 
If  the  grant  be  of  the  former  description,  the  mesne  acts  of  such  ad- 
ministration shall  be  of  no  validity;  as,  if  administration  be  com- 
mitted on  the  concealment  of  a  will,  and  afterwards  a  will  appear; 
inasmuch  as  the  grant  was  void  from  its  commencement,  all  acts 
performed  by  the  administration  in  that  character  shall  be  equally 
void  (x).  Or  if  administration  be  granted  before  the  refusal  of  the 
executor,  a  sale  by  the  administrator  of  the  testator's  effects  shall  be 
void,  although  the  executor  afterwards  appear  and  renounce  (y). 
Orjfthe  executor  omit  proving  the  will,  whereby  administration 
is  granted  to  a  debtor,  the  executor  may  afterwards  prove  it,  and 
then  sue  the  administrator  for  the  debt,  which  is  not  extinguished 
by  the  administration  (z).  So  where  an  administratrix  sued  a 
debtor  of  the  intestate,  and,  pending  the  suit,  another  by  fraud 
procured  a  second  administration  to  himself  jointly  with  her,  and 
after  judgment  released  to  the  debtor,  on  which  he  brought  an 
audita  querela,  and  in  the  mean  time  the  second  administration 
was  revoked,  the  release  was  held  to  be  of  no  avail  (a). 

Thus  in  all  other  cases  the  acts  of  the  administrator  are  of  no  ef- 
fect, where  the  administration  is  unlawful  ab  initio. 

[129]  If  the  grant  were  only  voidable,  then  another  distinction 
arises  between  the  case  of  suit  by  citation,  which  is  to  countermand 
or  revoke  former  letters  of  administration;  and  on  appeal  which  is 
always  to  reverse  a  former  sentence  (b). 

In  case  of  an  appeal,  such  intermediate  acts  of  the  administrator 
shall  be  ineffectual;  because,  as  we  have  before  seen,  the  appeal 
suspends  the  former  sentence,  and  on  its  reversal  it  is  as  if  it  had 
never  existed, (c). 

But  if  administration  be  only  voidable,  and  the  suit  be  by  cita- 
tion, all  lawful  acts  by  the  first  administrator  shall  be  valid,  as  a 
bond  fide  sale,  or  a  gift  by  him  of  the  goods  of  the  intestate;  and 
such  gift  shall  be  available,  even  if  it  were  with,  intent  to  defeat, 
the  second  administrator,  or  were  made  pendente  lite,  on  the  cita- 
tion; although  by  the  stat.  13  Eliz.  c.  5.  it  be  void  as  to  a  credi- 
Ciw)  Blackborough  v.  Davis,  1  P.  (z)  Com.  Dig-.  Admon.  B.  10.  Bax- 
Wms.  43.  2  Bl.  Com.  112.  11  Vin.  ter  and  Bale's  Case,  1  Leon.  90.  11 
Abr.  92,  115.  Com.  Dig-.  Admon.  B.  Vin.  Abr.  94.- 
7,  8.  (a)  Com.  Dig-.  Admon.  B.  10.  Anon. 

(x)  Com.  Dig.  Admon.  B.  10.  Abram     Dyer,  339.  6  Co.  19. 
v.  Cunningham,    2  Lev.   182.     3  Bac.         (b)  6  Co.  18  b. 
Abr.  50.  1  (c)  Allen  v.   Dundas,  3  Term  Rep. 

(y)    11    Vin.    Abr.  95.      Abram    v.     129.     11  Vin.  Abr.   117. 
Cunning-ham,  2  Mod.  146. 


129  HOW  A  REPEAL.  [liOOK   I. 

tor  (d).  So  if  administration  be  committed  to  a  creditor,  and 
afterwards  repealed  on  citation  at  the  suit  of  the  next  of  kin,  such 
creditor  shall  retain  against  the  rightful  administrator;  and  his  dis- 
posal of  the  goods  pending  the  cause,  and  before  sentence  of  repeal, 
shall  be  effectual  (e).  (1)  If  an  administrator  assign  a  term,  and, 
on  a  subsequent  citation  to  repeal  the  administration,  it  is  confirm- 
ed, and  on  appeal  the  sentence  is  reversed,  the  assignment  shall 
[130]  be  good,  for  the  repeal  is  merely  of  a  sentence  on  citation, 
and  therefore  of  the  nature  of  a  suit  on  such  process;  consequently 
the  effect  is  the  same  as  if  the  first  administration  had  been  avoided 
in  such  suit,  and  not  as- if  an  appeal  had  been  brought  in  the  first 
instance  (f). 

But  where  an  administrator  sold  a  term  in  trust  for  himself,  al- 
though the  administration  were  revoked  on  a  suit  by  citation, 
and  not  on  an  appeal,  the  assignment  was  decreed  to  be  set 
aside  (g).  (2) 

Whether  the  administration  be  void  or  voidable,  a  bond  fide 
payment  to  the  administrator  of  a  debt  due  to  the  estate  shall  be  a 
le"-al  discharge  to  the  debtor,  by  analogy  to  the  case  before  stated 
in  regard  to  such  payment  under  probate  of  a  forged  will  (//.).  (3) 
In  a  case  as  early  as  the  time  of  Charles  the  Second,  where  the  ad- 
ministrator of  the  lessee  paid  rent  to  the  administrator  of  the  lessor, 
and  the  latter  administration  was  repealed  and  granted  to  A.,  and 
he  brought  an  action  as  well  for  the  rent  paid  to  the  former  ad- 
ministrator of  lessor,  as  for  rent  which  accrued  due  subsequently 
to  the  repeal,  and  obtained  a  verdict  and  judgment  for  the  same, 
the  defendant  was  relieved  in  equity  in  regard  to  the  rent  he 
*[131  j  had  paid,  inasmuch  as  he  had  paid  it  to  the  visible  adminis- 
trator (/). 

This,  however,  is  to  be  understood  only  where  the  grant  is  re- 
voked on  citation;  if  it  be  reversed  on  appeal,  the  administrator's 

(d)  Com.    Dip:.    Admon.     B.    9.      1     Abr.  118. 

Salk.  38.  6  Co.  i8.  b.   11  Yin.  Abr.  95.  (g)  11  Vin.  Abr.  95.    Jones  v.  "Wal- 

(e)  Blackborough  v.    Davis,  1  Salk.     ler,  2  Ch.   Ca.   129.     . 

38.  11  Vin.  Abr.  117.  Thomas  v.  But-  (A)  Allen  v.  Dundas,  3  Term  Hep. 
ler,  1  Ventr.  219.  125.  supr. 

(/)  'Syms  v.  Syms,  Rayirf.  224.    Se-         (/)  11  Vin.  Abr.  117.  Finch.  Rep.  40. 


mine 


Semine,   2   Lev.  90.     11  Vin. 


(1)  Benson,  adm.  v.  Riceet  al.  2  Nott  5c  VT'Cord,  577. 

(2)  Though  the  law  is  too  well  established  now  to  be  drawn  in  question,  that 
an  administrator  cannot,  at  either  public  or  private  sale,  purchase  in  the  goods  of 
an  intestate  for  his  own  use,  yet  if  the  goods  are  bona  fide  purchased  by  a  third 
person  for  his  own  use  and  benefit,  without  collusion  between  him  and  the  admi- 
nistrator, neither  the  principles  of  law  nor  equity  preclude  the  administrator  from 
afterwards  acquiring  a  right  in  the  goods  by  a  subsequent  contract  with  such  pur- 
chaser.    Scott  v.  Burch,  6  Harr.  &  Johns.  67;  see  the  close  of  the  judgment. 

(3)  Pecble's  Appeal,  15  Serg.  &  Rawle,  o9.  And  where  an  administrator  pen- 
dente lite,  who  has  no  power  to  make  distribution  of  the  estate,  has  made  distribu- 
tion according  to  law,  the  court  will  not  compel  him  to  refund  to  the  general  ad- 
ministrator, in  order  that  he  may  pay  it  over  again  to  the  same  persons.  Cat?  aj 
Bradford's  Administrators,  P.  A.  Browne's  Rep.  87. 


CHAP.   IIT.]      HOW  A  REPEAL  AFFECTS  MESNE  ACTS.  131. 

authority  was  suspended  by  the  appeal,  and  of  course  such  pay- 
ments shall  he  void.  (1) 

But  whether  the  administration  he  void  or  voidable,  or  he  re- 
voked on  citation  or  appeal,  if  an  action  be  brought  by  the  admi- 
nistrator, and,  while  it  is  pending,  administration  is  committed  to 
another,  the  writ  shall  be  abated  (&).. 

Or  if  the  administrator,  before  the  repeal,  obtain  a  judgment  for 
a  debt  due  to  the  intestate  he  is  not  entitled  to  take  out  execution, 
but  the  defendant  may  avoid  the  judgment  by  an  audita  quere- 
la (I).  So,  if  the  defendant  be  actually  in  execution,  the  judgment 
shall  be  vacated  in  the  same  manner,  and  the  execution  set  aside(w) : 
for  in  such  cases  the  plaintiff  had  no  authority  but  by  virtue  of  a 
commission  from  the  ordinary,  and  when  that  is  determined,  his 
authority  is  determined  with  it.  But  on  affidavit  to  stay  execution 
on  a  judgment  recovered  by  an -administrator,  on  the  ground  that 
[132]  the  letters  of  administration  were  repealed  before  the  judg- 
ment entered,  it  was  held  that  the  matter  did  not  come  legally  in 
question  before  the  court,  and  that  the  party  ought  to  bring  an 
audita  querela  (n). 

If  administration  be  granted,  and  afterwards  an  executor  appear, 
if  the  administrator  have  paid  debts,  legacies,  or  funeral  expenses, 
he  shall  be  allowed  to  deduct  such  payments  in  the  damages  reco- 
vered against  him  in  an  action  by  the  executor  (o).  (2) 

(&)  11  Yin.  Abr.  118.    Bro.  Admon.  343. 
pi.  3.  O)  11  Vin.  Abr.  117.    Ket  v.  Life, 

(/)  11  Vin.    Abr.    102.    117.     Com.  Yelv.  125.     3  Bac.  Abr.  51. 
Dig-.  Admon.  B.  10.    Turner  v.  Davies,         (n)  11  Vin  Abr.   117.     Styl.  417. 
2  Sand.  149.   S.  C.    1  Mod.   62.     Lut.         (o)  3  Bac.  Abr.  50.  Flow.  282. 


(1)  In  Pennsylvania,  by  the  18th  sect,  of  the  Act  of  13th  April,  1791,  (Purd. 
Dig.  703,  3  Dull.  93,  3  Sm.  Laws,  30,)  "No  appeal  from  the  decree  of  the  Re- 
gister's court  concerning  the  validity  of  a  will,  or  the  right  to  administer,  shall 
stay  the  proceedings,  or  prejudice  the  acts  of  any  executor  or  administrator  pend- 
ing- the  same,  provided  the  executor  shall  give  sufficient  security  for  the  faithful 

•execution  of  the  will  and  testament,  to  the  Register:  but  in  case  of  refusal,  the 
said  Register  is  directed  to  grant  letters  of  administration  pending  the  dispute, 
which  shall  suspend  the  power  of  such  executor  during  that  time." 

Where  a  defendant  has  received  letters  testamentary  on  a  will  duly  proved, 
he  is  authorized  to  perform  every  act  proper  for  an  executor  to  do,  notwithstand- 
ing the  pendency  of  the  question  relative  to  the  validity  of  the  will.  Bradford  v. 
Boudinot,  3  Wash.  C.  C.  Rep.  122. 

A  decree  of  the  Register's  court  revoking  letters  of  administration,  and  direct- 
ing them  to  issue  to  another  person,  which  decree  has  been  appealed  from  by  the 
administrator,  does  not,  while  such  appeal  is  pending  and  undetermined  in  the 
Supreme  Court,  suspend  his  power  of  proceeding  to  recover  the  debts  due  to 
his  intestate.     Shaujjkr  v.  Stoever,  4  Serg-.  &  Rawle,  202. 

(2)  An  executor  obtained  letters  on  a  will  duly  proved,  which  was  afterwards 
raveated,  and  finally  adjudged  not  to  be  the  will  of  the  deceased.  Held,  that  it 
was  his  duty  to  support  the  first  probate,  believing-  it  genuine,  and  that  he  was 
entitled  to  retain  out  of  the  estate  the  amount  of  the  funeral  expenses,  the  ex- 
penses incurred  in  litigating  the  question  of  the  validity  of  the  will,  and  also  the 
usual  commissions  for  managing  the  estate  while  in  his  hands.  Bradford  v.  BoU' 
dinot,  3  Wash,  c!  C.  Rep.  122. 

12 


132  HOW  A  REPEAL  AFFECTS  MESNE  ACTS.       [BOOK  I. 

If  administration  have  been  granted  to  a  creditor,  he  has  a  right 
to  maintain  it  against  the  executor  of  a  will  afterwards  produced, 
or  the  next  of  kin;  it  is  not  to  be  revoked  on  mere  suggestion,  and 
he  is  at  liberty  to  show  cause  why  it  should  not  be  revoked  (p). 

But  if  administration  be  granted  to  a  creditor,  and  he  settles  his 
own  debt  and  goes  away,  it  will  be  revoked,  and  a  new  adminis- 
tration granted  (g). 

• 
(p)  Elme  v.  Da  Costa,  1  Phill.  Rep.  173.      (?)  In  re  Jenkins,  2  Phill.  Rep.  33. 


[     133      ] 


BOOK   II. 

OF  THE  RIGHTS  AND  INTERESTS  OF  EXECUTORS  AND 
ADMINISTRATORS . 


CHAP   I. 


OF  THE  GENERAL  NATURE  OP  AN  EXECUTOR'S  OR  ADMINISTRA- 
TOR'S INTEREST DISTRIBUTION  OF  THE  SUBJECT  WITH  REFER- 
ENCE TO  THE  DIFFERENT  SPECIES  OF  THE  DECEASED'S  PRO- 
PERTY. 

An  executor  or  administrator  represents  the  person  of  the  testa- 
tor or  intestate  in  respect  to  his  personal  estate,  the  whole  of  which, 
generally  speaking,  vests  in  the  executor  immediately  on  the  tes- 
tator's death:  in  the  administrator,  on  the  grant  of  letters  of  ad- 
ministration (a);  and  such  grant  hath  relation  to  the  time  of  the 
intestate's  decease  (b). 

The  interest  which  such  representative  takes  in  the  deceased's 
property  is  very  different  from  that  which  helongs  to  him  in  re- 
gard to  his  own.  Instead  of  being  an  absolute  interest,  it  is  only 
temporary  and  qualified.  He  is  not  entitled  in.  his  own  right,  but 
[134]  in  aute?'  droit,  in  right  of  the  deceased.  He  is  intrusted 
merely  with  the  custody  and  distribution  of  the  effects  (c). 

Hence,  if  a  tenant  for  years  die,  having  appointed  him  who  has 
the  reversion  in  fee  his  executor,  whereby  the  term  of  years  vests 
also  in  him,  the  term  shall  not  merge,  for  he  has  the  fee  in  his  own 
right,  and  the  term  of  years  in  right  of  the  testator,  and  subject  to 
his  debts  and  legacies  (d).  So  if  an  executor  be  attainted  of  felony 
or  treason,  he  incurs  a  forfeiture  of  all  his  own  goods  and  chattels, 
but  those  of  which  he  is  possessed  as  executor  shall  not  be  for- 
feited (e). 

If  he  grant  all  his  property,  such  as  belongs  to  him  in  the  cha- 
racter of  executor  shall  not  pass,  unless  he  be  so  named  in  the 
grant  (/),  or  unless  he  have  no  other  property  (5-). 

(a)  Com.  Dig.  Admon.  B.  10,  11.  (f)  Marlow  v.  Smith,  2  P.  Wms. 
Co.  Litt.  209.     3  Bac.  Abr.  57.     Off.     200. 

Ex.  Suppl.  47.  (/)  Off.  Ex.  86.    Vid.  2  Roll.  Abr. 

(b)  Com.  Dig.  Admon.  B.  1.  2  58.  pi.  8.  Ld.  St!  John's  Case,  1  Leon. 
Roll.  Abr.  554.  263.     Shep.    Touch.    94.     Marlow    v. 

(c)  Off.    Ex.    85.    88.     Plowd.  182.  Smith,  2  P.  Wms.  200. 

525.     11  Vin.   Abr.  54.     9  Co.  88  b.         (g)     Hutchinson     v.     Savage,     Ld. 
Rutland   v.  Rutland,  2  P.    Wms.  212.     Raym.  1307. 
(./)  2  Bl.  Com.  177. 


134  OF  THE  NATURE  OF  [BOOK   II. 

If  he  become  bankrupt,  the  commissioners  cannot  seize  the  spe- 
cific effects  of  the  testator,  not  even  in  money,  which  specifically 
can  be  distinguished  and  ascertained  to  belong  to -the  deceased,  and 
not  to  the  bankrupt  himself  (A).  Nor  can  the  testator's  goods 
be  taken  in  execution  for  the  executor's  debt,  either  on  a  recogni- 
[135]  zance,  statute,  judgment,  or  for  his  debts  of  whatever  nature 
(e),  unless  there  be  sufficient  evidence,  either  direct  or  presump- 
tive, of  the  executor's  having  converted  the  goods  to  his  own  use 
(k),  or  unless  he  consent  to  such  seizure,  and  then  it  differs  not 
from  any  other  alienation;  an  execution  acquiesced  in  being  fcqui- 
valent  to  a  conveyance  (/).  ' 

Therefore,  where  an  executor  brought  an  action  in  the  court  of 
exchequer,  suggesting  that  the  defendant  detained  from  him  one 
hundred  pounds,  which  he  owed  to  him  as  executor  of  J.  S. , 
whereby  he  was  the  less  able  to  pay  a  debt  due  from  himself  to 
the  crown;  the  writ  was  abated,  because  the  court  could  not  intend 
that  the  king's  debt  could  be  satisfied  by  a  judgment  recovered  by 
the  plaintiff  in  that  capacity  (jri). 

And  where  a  creditor  laid  by  for  six  or  seven  years,  permitting 
the  executor  to  remain  in  possession  of  the  testator's  propert)*,  the 
court  refused  to  restrain- by  injunction  a  creditor  of"the  executor 
from  taking  in  execution  the  goods  of  the  testator  for  the  execu- 
tor's own  debt  (n). 

Nor  can  an  executor  bequeath  the  effects  which  he  holds  in  that 
right  (o).  And  if  he  die  without  a  will,  his  administrator  shall 
not,  as  we  may  remember,  intermeddle  with  the  testator's  estate. 
Nor  if  an  executor  die  in  debt,  shall  the  effects  of  the  testator  be 
[136]  liable  in  the  hands  of  the  executor's  representative,  to  the 
payment  of  the  executor's  debts  (p). 

So,  if  an  executrix  marry,  all  the  personal  chattels  of  which  she 
is  possessed  in  her  own  right,  are  of  course  absolutely  vested  in 
the  husband.  But  in  respect  of  the  goods  of  the  testator,  they  are 
not  transferred  by  the  marriage  (q). 

Nor  if  the  husband  of  an  executrix  sue  jointly  with  her  for  a 
debt  due  to  her  in  that  character,  and  she  die  after  judgment,  and 
before  execution,  can  the  husband  have  execution  on  the  judgment: 
for  although  he  were  privy  to  the  judgment,  yet  he  shall  not  re- 
cover the  debt,  because  it  belongs  to  the  testator's  representa- 
tive (r).  Nor  shall  a  term  in  the  hands  of  the  husband  in  right  of 
his  wife  as  administratrix  be  extendible  for  his  debt  (.9). 

(A)  Copeman  v.  Gallant,  1  P.  Wms.         (7)  Per  Lord  Mansfield  in  Whale   v. 

M'J.      Howard    v.    .lemnjett,   3    Burr.  Booth. 
1369.     Bourne  v.  Dodson,  1  Atk.  158.  (m)   Oft'.   Ex.  87. 

(i)    11    Yin.   Abr.   272.     Com.  Dig-.         (/')  Ray  v.  Ray,  Coop.  Kep.  264. 
Admon.  B.  10.  OfT.  Ex.  86.    R.  Fan- v.         (o)   11  "vin.  Abr.  421.     Plowd.   525. 

Newman,  4  Term  Rep.  621:    Boiler -J.  Oft'.  Ex.  86. 
contra.  See  also  Whale  v.   Booth,  ibid.  (p)  Oft".   Ex.   86. 

625.  in  note,  and  632.  (rj)   OIK  Ex.   87. 

(/.-)    \  id.   Farr  v.  Newman,  and  also  (/■)   1  Roll.  Abr.  8b?    tit.  Execution 

Quick  v.  Staines,  1  Bos    &  Pull.   293  (s)  Ridler  v.  Punter,  Cro   Eliz.  291 


CHAP.    I.]  AN    EXECUTOlt's  INTEREST.  136 

But  where  A.  appointed  his  widow  executrix,  who  continued  in 
possession  of  his  goods  during  three  months  after  his  death,  and  at 
the  end  of  that  time  married  B.,  and,  for  half  a  year  after  the 
marriage,  the  goods  were  treated  by  them  both  as  the  goods  of  B., 
it  was  held,  that  they  might  be  taken  in  execution  at  the  suit  of 
B.'s  creditor  (I). 

Such  is  the  nature  of  the  interest  to  which  an  executor  or  admi- 
[137]  nistrator  is  entitled  in  that  right,  and  so  distinguishable  is  it 
from  that  which  pertains  to  him  in  his  own. 

The  personal  property,  in  which  they  are  thus  respectively  in- 
terested, that  is  of  a  saleable  nature,  and  may  be  converted  into 
ready  money,  is  called  assets  in  the  hands  of  the  executor,  or  ad- 
ministrator, that  is,  sufficient,  from  the  French  assez,  to  make  him 
chargeable  to  a  creditor,  and  legatee,  or  party  in  distribution,  so 
far  as  such  goods  and  chattels  extend  (u). 

The  personal  effects  comprehend  so  wide  a  circle,  that  in  order 
to  view  them  with  any  distinctness,  it  is  necessary  they  should  be 
arranged  in  a  variety  of  classes. 

I  shall  therefore  first  consider  them  as  distinguished  into  chattels 
real,  and  chattels  personal,  in  the  deceased's  possession  at  the  time 
of  his  death. 

I  shall  then  treat  of  such  as  were  not  in  his  possession.     And, 

Among  such  as  were  not  in  his  possession,  of  things  in  action,  as 
well  those  where  the  cause  of  action  accrued  in  his  lifetime,  as  those 
where  it  accrued  after  his  death. 

I  shall  then  proceed  to  the  examination  of  such  chattels  as  vest 
[138]  in  the  executor,  or  administrator,  by  condition,  by  remain- 
der, or  increase,  by  assignment,  by  limitation,  and  by  election. 

1  shall  next  enquire  what  chattels  go  to  the  heir,  successor,  de 
visce,  or  remainder-man. 

Then  shew  to  what  the  widow  shall  be  entitled. 

Then  describe  the  nature  of  the  interest  of  a  donee  mortis 
causa. 

And  lastly,  point  out  how  effects,  which  an  executor  or  admi- 
nistrator takes  in  that  character,  may  become  his  own. 

(0  Quick  v.  Staines,  2  Bos.  &  Pull.  («)  1  M.  Com.  510.  Oft*.  Ex.  Suppl. 
093.     .  53.  Shep.  Touchst.  .496. 


[      139     ] 


CHAP.  II. 


0¥  THE    INTEREST  OF    AN  EXECUTOR    OK    AD.MIMSTEATOE    IN    THE 
CHATTELS  KEAL  AND  PERSONAL. 


Sect.  I. 
Of  his  interest  in  the  chattels  real. 

First,  the  personal  representative  is  entitled  to  the  chattels  real, 
that  is,  such  as  concern  or  savour  of  the  realty,  as  terms  for  years 
of  houses,  or  land,  mortgages,  the  next  presentation  to  a  church, 
estates  hy  statute  merchant,  statute  staple,  or  elegit,  interests  for 
years  in  adowsons,  commons,  fairs,  corodies,  estovers,  profits  of 
leets,  and  the  like.  This  species  of  chattels  is  styled  hy  the  civil 
law  immoveable  goods,  and,  inasmuch  as  they  are  interests  issuing 
out  of,  or  annexed  to  real  estates,  in  the  immobility  of  which  they 
participate,  by  our  law  they  are  described  as  real.  And  also,  as  the 
utmost  period  of  their  existence  is  fixed  and  limited,  either  for 
such  a  space  of  time  certain,  or  till  such  a  particular  sum  be  raised 
out  of  such  a  particular  income,  and  consequently  are  distinguish- 
able from  the  lowest  estate  of  freehold,  the  duration  of  which  is 
-sarily  indeterminate,  they  are  denominated  chattels 

[140]  Lands  devised  to  an  executor  fer  a  term  of  years  for  pay- 
ment of  debts  are  assets  in  his  hands  [b).  '\j 

Leases  are  likewise  assets  to  pay  debts,  although  the  executor 
assent  to  the  devise  of  them  (c).  And  in  case  a  term  be  devised 
to  the  executor,  and  he  enter,  and  die  before  probate,  the  term 
shall  be  deemed  to  be  legally  vested  in  him  by  his  entry,  and  the 
devise  executed  without  the  probate  {d).  So  a  lease  for  years  de- 
terminable on  lives  is  a  chattel  interest,  and  shall  vest  in  the  per- 
sonal representative  of  such  lessee  (e). 

If  an  estate  be  granted  to  A.  pur  aulervie,  but  not  limited  to  his 
heirs,  and  A.  die  in  the  lifetime  of  the  cestui  que  vie,  or  of  "him 
by  whose  life  it  is  holden,  as  there  is  no  special  occupant,  the  heir 
not  being  named  in  the  grant,  it  shall  by  the  stat.  2!)  Car.  2.  c.  3. 
go  to  the  executor,  and  be  assets  in  his  hands  for  payment  of  dc 

(a)2Bl.  Com  9ac.Abt.ST,        (e)  11  Via  < 

..  ;\.l ,.  11  Yin.     v.   Chamberlain,    1   Clian.  Ca.  257 
Abr.    17...    227.     Pynchyn  v.   Harris,         (d)  Dyer,  367,  a. 
-71.    Off.  Ex.  SuppL  0      J.      :A. 

(b)   11    Via  Abr.  :iW).  U  Uiov.i.l.  47. 

_ . , 

(1)  Nimnid    J.j..  .    Tht  Commonwealth,    Hie         blunf.   'SI. 


CHAP.  II.]    OF  THE  EXECUTOR?S  INTEREST.  140 

and  after  payment  of  the  same,  the  surplus  of  such  estate,  by  the 
stat.  14  Geo.  2.  c.  20.  shall  go  in  a  course  of  distribution  like  a 
chattel  interest  (/).  These  statutes  operate  equally  on  grants  of 
estates  pur  aider  vie  in  incorporeal  hereditaments;  as  if  rent  be 
granted  to  A.  during  the  life  of  another,  the  rent  by  virtue  of  these 
[141]  provisions  has  been  holden  to  continue  in  the  representatives 
of  the  grantee  dying  in  the  lifetime  of  the  cestui  que  vie  (g). 

Where  A.,  tenant  for  three  lives  to  him  and  his  heirs,  assigned 
over  his  whole  estate  in  the  premises  by  lease  and  release  to  B.  and 
his  heirs,  reserving  rent  to  A.,  his  executors,  administrators,  and 
assigns,  with  a  proviso  that  on  non-payment  A.  and  his  heirs  might 
re-enter;  and  B.  covenanted  to  pay  the  rent  to  A.,  his  executors 
and  administrators;  the  rent  was  held  payable  to  A.'s  executor, 
and  not  to  his  heir,  on  the  ground  that  there  was  no  reversion  to 
the  assignor,  and  the  rent  was  expressly  reserved  to  the  executor. 
That  therefore  the  proviso  for  the  heir  to  enter  was  not  material, 
for  the  reservation  of  the  rent  being  to  the  executor,  the  heir  in 
case  of  re-entry  would  be  a  trustee  for  him  (A). 

In  case  of  a  tenancy  from  year  to  year  as  long  as  both  parties 
please,  if  the  tenant  die  intestate,  the  same  interest  as  the  deceased 
had  shall  devolve  on  his  administrator  (i). 

If  the  testator  were  lessee  for  years,  fish,  rabbits,  deer,  and  pi- 
geons, shall  belong  to  his  executor  as  accessory  chattels,  partaking 
of  the  nature  of  their  respective  principals,  namely,  the  pond,  the 
warren,  the  park,  and  the  dove-house  (&). 

If  an  executor  hath  a  lease  for  years  of  land  of  the  annual  va- 
lue of  twenty  pounds,  rendering  a  rent  of  ten  pounds  a-year,  it 
shall  be  assets  only  for  the  ten  pounds  over  and  above  the  rent  (/). 

A  reversion  of  a  term  is  vested  in  the  executor  immediately  on 
the  testator's  death,  and  shall  be  assets  in  his  hands  for  its  utmost 
value  (m).  (1)  If  an  executor  renew,  the  new  lease  as  well  as  the 
old  shall  be  assets  (n).  If  A.  be  possessed  of  a  term  as  executor,  and 
[142]  he  purchase  the  reversion  in  fee,  he  is  still  chargeable  for  the 

(/)  2  Bl.  Com.  120,  258,  259,  260.  dem.  Tasker   v.  Burr,   1  Black.  Rep. 

Phillips  v.  Phillips,  Prec.  in  Ch.  167.  596.      Rex  ▼.  Willet,    6    Term    Rep. 

S.  C.  1  P.  Wms.  39.     Duke  of  Devon.  295.    James  v.  Dean,  11  Ves.  jun.  383. 

v.  Atkins,  2  P.  Wms.  380.     Vid.  At-  and  15  Ves.  jun.  236. 

kinson  admx.  v.  Baker,    4  Term  Rep.  (A-)  Off.  Ex.  53.     11  Vin.  Abr.  166. 

229.  and    6  Term  Rep.  291.     Milner  Harg.  Co.  Litt.  8.  note  10. 

v.  Lord  Harewood,  18  Ves.  273.  (/)  3   Bac.  Abr.  57.     11    Vin.  Abr. 

(g)  Harg.  Co.  Lit.  41  b.    Fearne's  230.  pi.  42.     S.  C.  5  Co.  31.   Off.  Ex. 

Conting.  Rem.  232,  233.     3  P.  Wms.  Suppl.  55.  Shep.  Touchst.  498.  Body 

264.  in  note.  Kendal  v.   Micfield,  Bar-  v.  Hargrave,  Cro.  Eliz.  712.     Sed  vid. 

nard,  46.  Vid.  also  Stat.  5  Geo.  3.  c.  17.  Ci'O.  Jac.  545. 

Sed  vid.  2  Bl.  Com.  260.   Vaugh.  201.  (hi)  11   Vin.  Abr.   240.     Prattle  v. 

(h)  Jenison  v.  Lord  Lexington,  1  P.  King,  2  Jo.  170. 

Wms.  555.  (n)  3  Bac  Abr. -58.     Anon.  2  Chan. 

(;')  Doe  on  dem.   Shore  v.  Porter,  3  Ca.  208. 
Term  Rep.   13.    Vid.  also  Gulliver  on 

(1)  DuMart's  Ex.  v.  Tht  State,  4  Ilarr.  Sc  Johns.  506. 


142  OF  THE  EXECUTOR'S  INTEREST      [BOOK  II. 

assets  in  respect  of  the  term,  although  it  be  extinguished,  so  that 
it  shall  be  incapable  of  vesting  in  his  executor  (o).  So  if  the  exe- 
cutor of  the  lessee  surrender  the  lease,  it  shall  be  considered  as  as- 
sets, although  the  term  be  extinct  (p). 

So,  where  A.  seised  of  land  in  fee  devised  it  to  B.  for  thirty- 
one  years,  for  payment  of  debts,  and  appointed  B.  his  executor, 
and,  during  the  term,  the  fee  descended  on  B. ;  it  was  adjudged, 
that,  although  by  the  descent  of  the  inheritance,  the  term  was 
merged  as  to  him,  yet  that  it  was  in  esse  as  to  creditors,  and  lega- 
tees, and  should  be  assets  in  his  hands  (q).  (1) 

If  A.  have  a  term  in  right  of  his  wife,  as  executrix,  and  he  pur- 
chase the  reversion,  the  term  is  extinct  as  to  her,  though  she  sur- 
vive, but,  in  regard  to  a  stranger,  it  shall  be  considered  as  assets 
in  her  hands  (r).  But,  where  A.  on  his  marriage,  demised  lands 
to  B.,  and  B.  re-demised  them  to  A.  for  a  shorter  term,  subject  to 
a  pepper-corn  rent,  during  the  life  of  A.,  and  after  his  death,  to  an 
annual  sum  for  the  life  of  his  wife,  as  her  jointure,  and  a  pepper- 
corn rent  for  the  remainder  of  the  term,  and  A.  died,  it  was  held, 
[143]  that  the  re-demised  term  should  not  be  assets  to  pay  any  of 
his  debts,  except  such  as  affected  the  inheritance,  inasmuch  as  such 
term  was  raised  for  a  particular  purpose  (<?).  So,  where  A.  on  the 
marriage  of  his  son  B.  settled  a  lease  for  years  on  him  for  life,  and 
on  the  wife  for  life,  and  then  on  the  issue  of  the  marriage,  and  B. 
covenanted  to  renew  the  lease  from  time  to  time,  and  to  assign  it  on 
tbe  same  trust,  and  B.  renewed  the  lease  in  his  own  name,  but 
made  no  assignment  to  the  trustees  and  died;  the  lease  was  held  to 
be  bound  by  the  agreement  on  the  marriage,  and  that  it  was  not 
assets,  nor  liable  to  his  debts  (/).  Nor  where  a  lease  for  years  is 
granted  on  condition  to  be  void  on  non-payment  of  rent,  and  the 
condition  is  broken,  and  the  lessee  afterwards  dies,  shall  it  be  as- 
sets in  the  hands  of  his  executor  *(w).  Nor  is  the  trust  of  a  term 
made  assets  by  the  statute  of  frauds  in  the  hands  of  the  executor 
of  cestui/  que  trust  (w). 

If  tbe  testator  die  in  possession  of  a  term  for  years,  it  shall  vest 
in  the  executor;  and,  although  it  be  worth  nothing,  he  cannot 
waive  it,  for  he  must  renounce  the  executorship  in  tolo,  or  not  at 
all  (x).  But  this  is  to  be  understood  only  where  the  executor  has 
assets,  for  he  may  relinquish  the  lease,  if  the  property  be  insufficient 

0)  Off.  Ex.  Suppl.  55.  11  Yin.  Abr.  v.  Burchett,  2  Vern.  298. 
227.  pi.  16.  21.     Sliep.  Touchst.  497.  (u)   11  Tin,  Abr.  228.  2  Leon.  143. 

(p)  1  Co.  87  b.     11  Vin.  Abr.  229.  O)  Vid.    11    Yin.  Abr.  236.  Greaves 

(y)  11  Vin.  Abr.  229.  Off.  Ex.  Suppl.  v.  Powell,  2  Vern.  248.  Vid.  infr.  Book 

76.  in.  c.  9. 

(?•)  11  Yin.  Abr.  236.   Anon.  Moore,         (.?;)  Com.  Dig-.  Admon.  B.  4.  B.   10. 

.54.         •  1  Sid.  266.     Fooler  v.  Cooke,   1  Salk. 

0)    11    Yin.    Abr.    236.     Baden    v.  297.     Holier  v.   Casebert,   1  Lev.   1J7 

Earl  of  Pembroke,  2  V.ern.  52.  213.  Bolton  v.  Cannon,  lYintr.  271.  supr. 

(t)  11    Yin.  Abr.  237.     Goodfellow  42. 

(1)  See  Nmnrto'a  Ex.  v.  TTi'e  Cumnwuwn/itfi,  4  Hen.  8c  Munf.  57. 


CHAP.   II.]  IX  CHATTELS  HEAL.  144 

[144]  to  pay  the  rent;  yet  in  case  there  are  assets  to  bear  the  loss 
for  some  years,  though  not  during  the  whole  term,  it  seems  the  ex- 
ecutor is  bound  to  continue  tenant,  till  the  fund  is  exhausted, 
when,  on  giving  notice  to  the  lessor,  he  may  waive  the  posses- 
sion (y). 

A  leasehold  estate  in  Ireland  is  considered  as  personal  estate  in 
England;  but,  whether  a  leasehold  estate  in  Scotland  is  to  be  re- 
garded in  the  same  light  seems  not  to  be  settled  (z). 

If  A.  covenant  to  grant  a  lease  for  years  to  B.  his  executors,  or 
administrators,  and  after  B.'s  death,  the  lease  is  granted  to  his  exe- 
cutor accordingly,  it  shall  be  assets  (a). 

So,  if  the  lessor  covenant  to  renew  the  lease  at  the  request  of  the 
lessee,  within  the  term,  and  the  lessee  does  not  make  the  request, 
but  his  executors  make  the  request  within  the  term,  the  lessor 
shall  be  compelled  to  renew  the  lease;  for  the  executors  of 
every  person  are  implied  in  himself  and  bound  without  being 
named  (6). 

A  grant  of  the  next  presentation  to  a  living  to  J.  S.  during  his 
life,  is  limited,  and  shall  not  carry  the  presentation  to  his  execu- 
tors, on  his  dying  before  the  church  becomes  void  (c). 

Among  chattels  real  is  also  to  be  classed,  the  interest  styled  in 
law,  the  annum,  diem,  et  vustum,  the  year,  day,  and  waste,  that 
is,  where  a  party,  who  is  not  tenant  to  the  king,  is  attainted  of  fe- 
lony, all  his  lands  and  tenements  in  fee  simple  are,  after  his  death, 
[145]  forfeited  to  the  crown,  for  a  year  and  a  day;  and  the  king, 
or  his  grantee,  and  therefore  his  executor  during  such  period,  hath 
not  only  a  right  to  take  the  rents  and  profits  of  the  estate,  but  also 
to  commit  upon  it  whatever  waste  he  pleases  (d). 

If  rent  be  reserved  on  a  lease  for  years,  and  the  lessor  die,  the 
rent  in  arrear  at  the  time  of  his  death  shall  go  to  his  executor  (e). 

A  lessee  for  years  hath  only  a  special  interest,  and  property  in 
the  fruit,  and  shade  of  timber  trees,  so  long  as  they  are  annexed 
to  the  land,  but  he  has  a  general  property  in  hedges,  bushes,  and 
trees  not  timber  {f),  and  consequently  the  same  interest  shall 
rest  in  his  executor.  If  he  be  lessee  without  impeachment  of 
waste,  in  that  case  he  has  a  general  property,  as  well  in  timber 
trees  as  others;  but  unless  they  are  severed  during  the  term,  they 
shall  not"  belong  to  him,  or  to  his  executor,  but  to  the  lessor,  as  an- 
nexed to  the  freehold. 

Where  such  chattels  concern  corporeal  hereditaments,  as  leases 
for  years  of  houses,  or  lands,  the  executor  is  not  deemed  to  be  in 
possession  of  them,   till  he  is  actually  entered.     But,  in  regard  to 

(y)  Off.  Ex.   120.  vid.  infr.  (d)   3   Bac.  Abr.  61.     Off.  Ex.  54. 

(z)  11  Vhi.  Abr.   239.  Bligh  v.  Earl  2  Bl.   Com.  252.     4  Bl.  Com.  385.     11 

Darnlev,  2  P.  Wms.  622.  Yin.  Abr.  175. 

(a)  Shep.  Touchst.  497.   infr.  (?)  Off.  Ex.53.  Off.  Ex.  Suppl.  119. 

lb)  Hyde  v.  Skinner,  2  P.  Wms.  196.  3  Bac.   Abr.  63. 

(c)   li  Vin.   Abr.     436.  pi  27,   28.  (/)  Com.   Dig.  Biens.  H.     4  Co.  62 

Mann  v.   Bishop   of  Bristol,  fro.    Car.  b.  v.  90  b.-     1  Roll.  Rep.  181. 
506. 

13 


145  OF  the  executor's  interest  [book  II. 

such  chattels  as  relate  to  incorporeal  hereditaments,  as  leases  of 
[146]  tithes,  the  possession  of  the  executor  is  necessarily  construc- 
tive, because  on  them  there  can  be  no  entry.  At  the  instant  there- 
fore that  the  tithes  are  set  out,  in  a  place  however  remote,  he  shall 
be  possessed  of  them  in  contemplation  of  law  (g). 

If  the  lease  be  of  a  rectory,  consisting  not  only  of  tithes,  but 
also  of  glebe  lands,  then  it  appears  that  the  executor  is  not  in  pos- 
session of  the  tithes,  unless  he  enter  upon  the  lands  (h). 

The  executor  of  tenant  from  year  to  year,  of  an  estate  under  the 
annual  value  of  ten  pounds,  may  gain  a  settlement  by  residing  on 
it  for  forty  days  (i).(l) 

(g)  Off.  Ex.  108,  109.  11  Vin.  Abr.  (i)  The  King  v.  the  Inhabitants  of 
240.  Stone,  6  Term  Rep.  29. 

(//)  Off.  Ex.   109. 


(1)  By  the  laws  agreed  upon  in  England,  it  was  provided  "  that  all  lands  and 
goods  shall  be  liable  to  pay  debts,  except  where  there  is  legal  issue,  and  then  all 
the  goods  and  one-third  of  the  land  only."  (Prov.  Laws,  Ap p.  4th  edit.  1775. 
5  Sm.  Laws,  416.)  The  act  of  1700,  (Purd.  Dig.  262,  1  Dall.  Laws,  12.)  and 
1705,  (Purd.  Dig.  264,  1  Dall.  Laws,  267,  1  Sm.  Laws,  57.)  subjected  all  lands, 
tenements,  and  hereditaments  whatsoever,  of  a  decedent  to  be  sold  for  his  debts, 
upon  a  deficiency  of  the  personal  estate.  And  this  liability  has  been  held  to  ex- 
tend to  lands  iivthe  hands  of  a  bona  fide  purchaser  from  the  heir,  draff  v.  Smith's 
Mm.  1  Dall.  481.  Morris's  Lessee  v.  Smith,  1  Yeates,  238.  4  Dall.  Rep.  119. 
And  lands  being  liable  in  the  same  manner  as  chattels,  there  is  no  necessity  for  a 
scire  facias  against  the  heir  and  terre  tenants  to  revive  a  judgment  obtained  against 
the  testator,  nor  can  the  executor  plead  to  a  scire  facias  against  him,  that  there 
are  terre  tenants  whose  lands  are  also  bound  by  the  judgment,  so  as  to  oblige  the 
plaintiff  to  sue  out  a  scire  facias  against  them,  Wilson  v.  Watson,  1  Peters'  Rep. 
C.  C.  269.  The  act  of  4th  April  1797,  sect.  4,  (Purd.  Dig.  533,  4  Dall.  Laws, 
157,  ,3  Smith's  Laws,  297,)  recites,  that  "whereas  inconveniences  may  arise 
from  the  debts  of  deceased  persons  remaining  a  lien  on  their  lands  and  tene- 
ments, an  indefinite  period  of  time  after  their  decease,  whereby  bona  fide 
purchasers  may  be  injured,  and  titles  become  insecure,"  and  then  provides, 
"that  no  such  debts,  except  they  be  secured  by  mortgage,  judgment,  recog- 
nizance, or  other  record,  shall  remain  a  lien  on  said  lands  and  tenements  lon- 
ger than  seven  years  after  the  decease  of  such  debtor,  unless  an  action  for  the 
recovery  thereof  be  commenced  and  duly  prosecuted  against  his  or  her  heirs,  ex- 
ecutors, or  administrators,  within  the  said  period  of  seven  years,  or  a  copy  or  par- 
ticular written  statement  of  any  bond,  covenant,  debt  or  demand,  where  the 
same  is  not  payable  within  the  said  period  of  seven  years,  shall  be  filed  within 
the  said  period  in  the  office  of  the  prothonotary  of  the  county  where  the  lands 
lie:  Provided  always,  That  a  debt  due  and  owing  to  a  person,  who  at  the  time 
of  the  decease  of  such  debtor  is  a  feme  covert,  in  his  or  her  minority,  non,  compos 
mentis,  in  prison,  or  out  of  the  limits  of  the  United  States,  shall  remain  a  lien  on 
the  said  lands  and  tenements,  (notwithstanding  the  said  term  be  expired,)  until 
four  years  after  discovertnre,  or  such  person  shall  have  arrived  at  the  age  of 
twenty-one  years,  be  of  sound  mind,  enlarged  out  of  prison,  or  return  into  some 
one  of  the  United  States  of  America." 

Upon  the  construction  of  this  Act  no  decisions  have  taken  place,  in  which  cre- 
ditors were  directly  parties,  confining  the  protection  it  was  intended  to  provide  to 
the  case  of  a  purchaser.  The  case  of  Miller  v.  Stout,  2  P.  A.  Browne's  Rep. 
294,  involved  a  question  between  the  executor  of  the  testator,  who  had  sold  cer- 
tain lands  by  virtue  of  a  power  in  the  will,  and  certain  creditors  by  mortgage 
and  judgment  of  one  of  the  devisees  of  the  residue  of  the  real  estate  after  the 
debts  of  the  testator  should  be  paid.     The  facts  of  the  case  were  these.     Peter 


CHAP.  II.]         IN  CHATTELS  REAL.  146 

Hincfde  by  his  will,  after  several  devises  of  parts  of  his  real  estates,  and  bequests 
of  his  personal  property,  gave  his  executors  power  to  sell  as  much  of  his  remain- 
ing lands  as  should  be  sufficient  to  pay  his  debts.  Instead  of  selling-,  an  arrange- 
ment  was  made  between  the  executors,  and  the  residuary  devisees,  by  which 
each  devisee  was  to  have  his  part  upon  paying-  his  portion  of  the  debts,  and  all 
but  one  complied  with  the  terms  of  the  arrangement,  and  he  in  addition  to  his 
non-compliance,  executed  two  mortgages  of  his  interests,  and  gave  a  bond,  on 
which  judgment  was  entered,  to  a  creditor,  and  afterwards  the  executor  sold  by 
virtue  of  the  power.  The  Court,  in  determining  to  whom  the  proceeds  of  the 
sale  should  go,  the  money  having  been  paid  into  Court,  were  of  opinion  that 
by  the  provisions  of  the  will  the  debts  of  the  testator  were  a  lien  or  charge  up- 
on the  lands  designated  as  the  fund  for  the  payment  of  his  debts  by  the  testator; 
that  an)-  person  claiming  under  the  devisees  must  take  subject  to  that  lien,  not- 
withstanding the  provisions  of  the  4th  sect,  of  the  Act  of  April  4th,  1797;  and  that 
there  was  nothing  to  restrain  the  executor  from  selling  after  the  expiration  of 
seven  years  from  the  death  of  the  testator.  They  therefore  ordered  such  amount 
as  was  claimed  for  the  payment  of  the  testator's  debts  be  paid  to  the  executor, 
and  the  balance  to  the  mortgagee. 

If  a  devisee,  or  one  of  the  heirs,  loses  his  lands  by  an  execution  for  a  debt  of 
the  testator,  he  is  entitled  to  contribution  from  the  owners  of  the  remaining  part 
of  the  testator's  lands,  {Per  Tifghman,  C.J.  2  Binn.  299.)  though  they  may 
be  purchasers  for  a  valuable  consideration.  Graff  v.  Smith's  Adm.  1  Dall.  Rep. 
481.  The  mode  of  obtaining  contribution,  when  such  a  case  occurs,  has  not  been 
settled  by  decision;  and  the  doctrine  of  contribution  itself,  as  respects  the  contri- 
bution to  be  nrade  where  there  are  several  purchasers  of  several  tracts  of  land, 
the  estate  of  one  of  whom  has  been  sold  on  a  judgment  binding  the  lands  of  all, 
is  said  to  be  "untrodden  ground  covered  with  difficulties."  (10  Serg.  8c  Rawle, 
453.)  In  such  a  case  as  has  been  last  mentioned  it  was  decided,  that  the  pur- 
chaser whose  tract  had  been  sold,  thereby  satisfying  the  execution,  could  not 
maintain  assumpsit  against  another  purchaser  for  contribution.  Nailer,  Ex.  v.  Stan- 
ley, 10  Serg.  &  Rawle,  450. 

By  the  Act  of  1st  April,  1811,  sect.  2.  (Purd.  Dig.  617,  5  Sm.  Laws,  257.) 
"  in  all  cases  after  the  final  settlement  of  an  administration  account  in  the  Or- 
phan's Court,  if  it  shall  appear  that  there  are  not  sufficient  assets  to  pay  and  sa- 
tisfy the  balance  appearing  to  be  due  and  owing  from  the  estate  of  the  deceased, 
it  shall  be  lawful  for  the  said  Court  on  the  application  of  the  executors  or  admin- 
istrators, or  any  others  interested  therein,  to  make  an  order,  that  so  much  of  the 
real  estate  of  which  the  deceased  was  seised  or  possessed  at  the  time  of  his  de- 
cease, shall  be  sold  by  the  executors  or  administrators,  as  in  the  judgment  of  the 
Court  shall  be  sufficient  to  pay  such  balance;  and  the  Court  shall  likewise  decree 
in  such  cases,  what  contribution  shall  be  made  by  the  heirs  or  devisees  respec- 
tively, towards  the  payment  of  any  debts  chargeable  on  the  real  estate  of  any 
testator,  either  generally  in  the  first  instance,  or  where  the  land  decreed  to  be 
sold,  shall  have  been  in  any  manner  devised  to  any  heir  or  devisee,  after  such 
sale  being  made."  Under  this  Act  the  Orphan's  Court  has  power  to  order  a  sale, 
for  the  payment  of  debts  of  the  intestate,  upon  the  application  of  one  of  several 
administrators,  who  has  settled  a  final  account.  Biclile,  Adm.  v.  Young,  3  Serg. 
&  Rawle,  235. 

A  purchaser  under  a  sale  by  order  of  the  Orphan's  Court,  takes  the  land  dis- 
charged from  the  lien  of  the  intestate's  debts,  and  from  the  lien  of  judgments 
(which  are  to  be  paid  out  of  the  proceeds  of  sale  according  to  their  priority  in 
date,  Girard  v.  MiDermott,  adm.  6  Serg".  8c  Rawle,  128),  but  not  from  the  lien  of 
mortgages,  Molierc's  Lessee  v.  Noe,  4  Dall.  Rep.  450,  11  Serg.  8c  Rawle,  432. 
The  purchaser,  however,  is  bound  to  see  that  the  proceedings  in  the  Orphan's 
Court  are  so  far  regular  as  to  authorize  a  sale,  Messenger  v.  Kintncr,  4  Binn.  97. 
Snyder's  Lessee  v.  Snyder,  6  Binn.  483.  Larimer's  Lessee  v.  Irwin,  cited  4  Binn. 
104;  stated  2  Serg.  8c  Rawle,  7.  The  proceedings  of  the  Orphan's  Court  are  not 
conclusive,  but  may  be  tested  in  ejectment,  Messenger  v .  Kintncr,  Snyder's  Lessee 
v.  Snyder.-  but  whenever  such  sales  are  called  in  question,  every  presumption  is 
made  by  the  Courts  in  favour  of  their  regularity,  and  it  lies  on  the  party  impugn- 
ing them  to  show  their  irregularity,  M'Phcrsonx,  VunVff,  11  Serg-.  ?c  Rawle,  422, 


146  OF  THE  EXECUTORY  INTEREST      [BOOK  II 


Sect.   II. 

Of  his  interest  in  the  chattels  personal,  animate,   vegetable, 
and  inanimate: 

Secondly.  Chattels  personal  are  such  things  as  are  annexed 
to,  or  attendant  on  the  person  of  the  owner;  and  these,  by  the  civil 
law,  are  denominated  moveable.  They  are,  also,  to  be  distin- 
[147]  guished  into  animate,  vegetable,  and  inanimate  (a). 

The  animate  are  also  divided  into  such  as  are  domitie,  and  such 
as  are  ferse  naturx,  some  being  of  a  tame,  and  others  of  a  wild 
disposition.  Those  of  a  nature  tame  and  domestic,  as  sheep,  horses, 
kine,  bullocks,  poultry,  and  the  like,  are  capable  of  an  absolute 
property,  and  are  transmissible  like  all  other  personal  chattels,  to 
an  executor.  Those  of  a  wild  nature,  as  deer,  hares,  rabbits,  pi- 
geons, pheasants,  partridges,  and  hawks,  admit  only  of  a  qualified 
ownership.  Therefore,  unless  they  are  reclaimed,  that  is,  rendered 
tame  by  art,  industry,  and  education,  or  confined  so  that  they  can- 
not escape,  and  enjoy  their  natural  liberty,  or,  unless  they  arc  in- 
capable, through  weakness,  of  flying,  or  running  away,  they  are 
nullim  in  bonis,  not  regarded  in  the  light  of  private  property, 
and  consequently'cannot  pass  to  representatives  (b).  But  the  ani- 
mals I  have  just  enumerated,  provided  they  are  tame,  shall  belong 
to  the  executor.  lie  shall  also  be  entitled  to  them,  although  not 
tame,  if  they  be  taken,  and  kept  alive  in  any  room,  cage,  or  other 
receptacle  (c).  Nor  can  an  absolute  property  exist  in  fish  at  large 
in  the  water;  but  fish  in  a  trunk  shall  go  to  the  executor  (d).  Also, 
hawks,  herons,  and  other  birds,  rabbits  and  other  creatures,  in 
[  148]  nests,  or  burrows,  if  too  young  to  fly,  or  run  away,  are  all 
to  be  classed  among  personal  chattels  (e). 

(a)  2  Bl.  Com.  387,  389.     Off.  Ex.         (c)  Off.   Ex.  55,  57. 

55,  56,  57.  (<*)  Ibid.  53.    2  Bl.  Com.  392. 

(b)  2B1.  Com.  390,  391.  Com.  Dig.         (c)   Off.  Ex.  57.     2  Bl.  Com.  394. 
Biens.  A.  2. 


And  it  is  now  settled,  that  though  the  decrees  of.the  Orphan's  Court  may  be  con- 
troverted where  it  exceeds  its  jurisdiction,  yet  where  it  is  acting  within  its  juris- 
diction, the  truth  of  what  is  asserted  on  its  records  cannot  be  denied  in  a  collateral 
proceeding,  nor  its  decrees  questioned,  except  in  cases  of  fraud,  or  where  the 
defect  plainly  appears  on  the  face  of  the  proceedings.  Kennedy  v.  Wachsmuth, 
12  Serg.  &.  Rawle,  171.  President  of  the  Orphan's  Court,  &c.  v.  Groff,  14  Serg. 
&  Rawle,  181. 

"  The  surplus  of  lands  sold  under  execution  is  to  be  paid  to  the  executor  or  ad- 
ministrator, in  whose  hands  it  is  assets  for  the  payment  of  other  debts;  but  where 
there  are  no  debts,  the  heir  is  entitled  to  it;  and,  upon  making  out  a  proper  case, 
the  money  will  be  ordered  to  be  paid  into  Court  by  the  sheriff,  and  when  brought 
in,  the  Court  will  take  care  so  to  dispose  of  it  as  to  do  justice  to  the  heir,  and  pro- 
viding for  the  safety  of  creditors,  if  any  should  in  future  appear;  but  the  sheriff 
is  justified  in  paving  the  money  to  the  administrator,  unless  he  receive  notice, 
from  the  heir.  Gui'er  v.  Kelly,  2  Binn.  298.  Conun.  v.  Rahm,  2  Serg.  &  Rawle, 
375. 


CHAP.   II.]  IN  CHATTELS  PERSONAL.  148 

Of  the  same  description  arc  hounds,  greyhounds,  and  spaniels, 
and  as  accessary  to  such  chattels,  a  hunter's  horn,  and  a  falconer's 
lure  (/).  And  since  the  executor's  interest  is  co-extensive  with 
that  which  was  vested  in  the  testator,  the  property  in  all  his  ani- 
mals, however  minute  in  point  of  value,  shall  go  to  the  executor, 
as  house-dogs,  ferrets,  and  the  like  (g);  or  although  they  were 
kept  only  for  pleasure,  curiosity,  or  whim,  as  lap-dogs,  squirrels, 
parrots,  and  singing-birds  (h). 

An  executor  shall,  likewise,  be  entitled  to  deer  in  a  park,  hares 
or  rabbits  in  an  enclosed  warren,  doves  in  a  dove-house,  phea- 
sants or  partridges  in  a  mew,  fish  in  a  private  pond,  and,  according 
to  Bracton,  to  bees  in  a  hive;  if,  as  we  have  before  seen  (i),  the 
testator  were  lessee  for  years  of  the  premises  to  which  they  re- 
spectively belong  (k). 

These  various  animals  are  no  longer  the  property  of  an  indivi- 
dual, or  transmissible  to  his  representative,  than  while  they  conti- 
nue in  his  possession.  If  they  obtain  their  natural  freedom,  his  pro- 
[149]perty  instantly  ceases,  unless  they  have  anirnum  revertcndi, 
which  is  to  be  known  only  by  their  custom  of  returning.  The  law, 
therefore,  extends  this  possession  farther  than  the  mere  manual 
occupation.  The  qualified  property  in  a  tame  hawk  is  not  divested 
by  his  pursuing  his  quarry  in  the  presence  of  the  sportsman,  nor  in 
pigeons,  especially  of  the  carrier  kind,  by  their  flying  at  a  distance 
from  their  home;  nor  in  deer,  by  their  being  chased  out  of  a  park, 
or  forest;  nor  in  bees,  by  their  flying  from  the  hive,  if  ttiey  are 
immediately  pursued  by  the  keeper,  forester,  or  owner.  If  they 
stray,  or  fly  without  the  knowledge  of  the  owner,  and  return  not 
in  the  usual  manner,  they  are  free,  and  open  to  the  first  occupant. 
But  if  a  deer,  or  an)'  wild  animal  reclaimed,  hath  a  collar,  or 
other  mark  put  upon  him,  and  goes  and  returns,  at  his  pleasure, 
the  owner's  property  in  him  still  continues;  but,  if  the  deer  has 
been  long  absent  without  returning,  such  property  shall  cease  (/). 

Personal  effects,  of  a  vegetable  nature,  are  the  fruit,  or  other 
parts  of  a  plant,  or  tree,  when  severed  from  the  body  of  it,  or  the 
whole  plant,  or  tree  itself,  when  severed  from  the  ground;  as  ap- 
ples or  pears,  which  are  gathered,  or  fallen,  grass  which  is  cut, 
and  trees,  or  their  branches,  which  are  felled,  or  lopped  (m). 

There  are,  also,  various  vegetables,  styled  in  law  emblements, 
[150]  which  are  deemed  personal,  and  go  to  the  executor,  although 
they  are  affixed  to  the  soil.  They  are  so  classed  when  they  are 
raised  annually  by  labour  and  manurance,  which  are  considerations 
of  a  personal  nature.  The  appellation  of  emblements,  properly 
speaking,  signifies  the  profits  of  sown  land,  but,  in  a  larger  sense, 
it  extends  to  roots  planted,  or  other  annual  artificial  profit:  it  in- 

(  /")  Ibid.   53,  57.  Harg.   Co.  Litt.  8.  note  10. 

(g)  3  Bac.  Abr.  57.     Off.  Ex.  58.  .  (/)  2  Bl.  Com.  392.  Com.  Dig.  Biens. 

(k)  2  Bl.  Com.  393.  V.     7  Co.   17  b. 

(t)  Supr.  (m)  2B1.  Com.  389,     Off.  Ex.  59. 

(/()  2  Bl.   Com.  393.     Off.  Ex.  53. 


150  OF  THE  EXECUTOR'S  INTEREST      [BOOK  II. 

eludes  corn  growing,  hops,  saffron,  hemp,  flax,  and,  as  it  seems, 
clover,  saint-foin,  and  every  other  yearly  production  in  which  art 
and  industry  must  combine  with  nature  (m). 

On  the  same  principle  melons,  cucumbers,  artichokes,  parsnips, 
carrots,  turnips,  and  the  like,  Belong  to  the  executor  (n).  The  exe- 
cutor of  a  tenant  for  life  has  also  been  held  entitled  to  hops,  al- 
though growing  on  ancient  roots,  as  in  the  nature  of  emblements, 
in  respect  of  the  cultivation  which  is  necessary  to  produce 
them  (o).  (1)  Manure,  in  a  heap,  before  it  is  spread  on  the  land, 
is  also  a  personal  chattel  (p). 

Personal  chattels  inanimate  are  household  goods,  merchandize, 
money,  pictures,  jewels,  garments;  in  short,  every  thing  not  in- 
cluded in  the  former  classes,  that  can  be  properly  put  in  motion, 
[151]  and  transferred  from  one  place  to  another  \q). 

There  are,  also,  some  other  interests,  which  fall  under  the  de- 
scription of  personal  chattels.  Of  this  species  is  the  testator's  pro- 
perty in  the  public  funds. 

The  next  advowson,  before  it  becomes  void,  as  I  have  already 
stated,  is  a  chattel  real,  but,  after  an  avoidance,  it  is  a  chattel  per- 
sonal (r). 

The  executor  also  has  an  interest  in  the  person  of  a  debtor,  in 
execution  at  the  testator's  suit;  and  without  the  executor's  assent, 
the  party  cannot  be  discharged.  This  interest  is  in  the  nature  of 
a  personal  chattel,  inasmuch  as  the  debtor  is  merely  a  pledge  to 
secure  the  debt  (s).  So,  a  prisoner  taken  in  war  is  of  the  same 
species  in  respect  of  his  ransom,  and,  on  the  captor's  death,  shall 
go  to  his  executor  (I).  Such,  also,  seems  the  interests  in  negro 
servants,  purchased  when  captives  of  the  nations  with  whom  they 
are  at  war;  though  accurately  speaking,  this  property  of  the  pur- 
chaser (if  it  indeed  continue)  consists  rather  in  their  perpetual  ser- 
vice, than  in  their  bodies  or  persons;  but,  such  as  it  is,  it  vests 
equally  in  the  executor  (?/■). 

[152]  In  general,  however,  a  servant  is  legally  discharged  by  the 
death  of  his  master,  and  the  executor  has  no  claim  to  his  ser- 
vice (v).  (2)     Nor  has  an  executor  any  interest  in  an  apprentice 

(to)  2  Bl.  Com.  122,  123.     Termes  (q)  2  Bl.  Com.  387,  389.  Off.  Ex.  57. 

de  la  ley  Embl.  Off.  Ex.  59.    4  Burn.  (>•)  11  Vin.  Abr.  173.  Off.  Ex.  54,  75. 

Eccl.L.  255.     Com.  Dig.  Biens.  G.   1.  (s)  3  Bac.  Abr.   57.     Off.  Ex.  56. 

Harg.   Co.  Litt.  55  b.  Anon.   2  Freem.  (/)  Off.   Ex.  56.    2  Bl.    Com.    402. 

210.  Bro.    Abr.   tit.    Propertie  18.      L.    of 

(??)  4  Burn.    Eccl.    L.    254.     2  Bl.  Test.  378. 

Com.   123.     Roll.  Abr.  728.  (u)  2  Bl.  Com.  403.    Chamberlain  v. 

(o)    Harg.    Co.   Litt.    55  b.  note  1.  Harvey,  Cartli.  396.     Ld.  Raym.   147- 

Cro.  Car.  515.  Smith  v.  Gould,  Salk.   667. 

(/?)  11  Vin.  Abr.   175.     Sty.  66.  (v)  Off.  Ex.  56. 


(1)  Thompson's  Mm.  v.  Thompson's  Ex.  6  Munf.  514. 

(2)  In  Pennsylvania,  executors  and  administrators,  upon  the  deatb  of  any  mas- 
ter or  mistress  before  tlie  expiration  of  the  term  of  any  apprenticeship,  may,  pro- 
vided the  term  of  the  indenture  extend  to  executors  or  administrators,  assign 


CHAP.  II.]  IN  CHATTELS  PERSONAL.  152 

bound  to  the  testator.  The  contract,  in  regard  to  instruction,  is  in 
its  nature  merely  personal,  and  dies  with  the  master.  Yet  although 
an  apprentice  be  not  strictly  transmissible,  if,  with  the  consent  of 
all  parties,  and  his  own,  he  continue  with  the  executor,  it  is  a  con- 
tinuation of  the  apprenticeship  (w);  provided,  in  the  case  of  a  trade, 
it  be  of  the  same  species  (x). 

An  interest  in  the  testator's  literary  property  may  devolve  on 
the  executor  pursuant  to  several  statutes  (y).  (1)  An  interest  may, 
likewise,  vest  in  him  by  virtue  of  a  patent  granted  to  the  testator, 
for  the  invention  of  a  new  manufacture  within  the  realm  (z).  (2) 

It  seems,  also,  that  a  caroome,  or  a  license  by  the  mayor  of 
London  to  keep  a  cart,  is  a  chattel  interest,  and  belongs  to  the  ex- 
ecutor (a). 

The  interest  in  all  these  chattels  is,  at  the  instant  of  the  tes- 
tator's death,  vested  in  the  executor;  and  from  the  death  of  the 
{153]  intestate,  by  relation,  in  the  administrator,  whether  he  has 
reduced  them  into  his  actual  possession,  or  not,  and  however 
widely  dispersed,  or  remotely  situated,  they  are  regarded  in 
law  as  assets  in  his  hands  (c).  Therefore,  where  the  jury  found 
assets  in  Ireland,  the  stating  of  them  on  the  special  verdict  to  be  in 
Ireland,  was  holden  surplusage  (d).  So,  if  an  executor  live  in  Lon- 
don and  have  left  goods  in  Bristol,  he  hath  such  an  immediate 
possession  of  the  goods,  that  he  may  maintain  trover  for  them  in 
his  own  name  (e).  In  like  manner  he  shall  be  deemed  to  be  in 
possession  of  a  ship  at  sea.  In  short,  in  whatever  part  of  the  world 
the  testator  hath  left  effects,  the  executor,  whether  in  the  manual 
occupation  of  them,  or  not,  is  deemed  to  all  intents  and  purposes 
the  possessor  in  point  of  law  (f).  And,  even  if  goods  be,  in  fact, 
taken  out  of  his  possession,  after  he  has  administered,  legally  he 

(w)  Baxter  v.   Burfield,  Stra.  1115,  (c)  Off.  Ex.  108,  109.     3  Bac.  Abr. 

1266.     Rex  v.   Stockland,  Doug-1.  70.  57.     Roll.   Abr.  921. 
1  Burn.  Just.   82.  et    seq.     2  Ves.  35.         (d)  6  Co.  46  b.     11  Vin.  Abr.  230. 
sed  vid.  Off.   Ex.   53,  56.  (e)  3  Bac.  Abr.  58.  in  note.  Jenkins 

(x)  Vid.  stat.  5  Eliz.  c.  4.  1  Bl.  Com.  v.  Plombe,  6  Mod.    181.     R.    in   evi- 

427,  428.   et  infr.  dence  by  Holt,  C  J.     Bolland  et  Ux. 

(y)  Stat.   8  Ann.  c.  10.      15  Geo.  3.  Admx.  v.    Spencer,  7  Term  Rep.  358. 

c.  53.     8  Geo.  2.  c.  13.     7  Geo.  3.  c.  Munt   v.   Stokes,    4  Term  Rep.    563, 

38.     17  Geo.  3.  c.  57.  Sed    vid.   Cockerill    et    Ux.    extx.  v. 

(z)  Stat.  21  Jac.  1.  c.  3.  Kynaston,  4  Term  Rep.  277. 

(a)  11  Vin.  Abr.    151.     Com.  Dig-.         (/)  3  Bac.  57.     11  Vin.  Abr.  230, 

Biens.  B.    Hunt  v.  Hunt,  2  Vern.  83.  240.  Shep.  Touchst.  496. 

over  tbe  remainder  of  the  term  of  such  apprenticeship  to  such  suitable  person  of 
the  same  trade  or  calling  mentioned  in  the  indenture,  as  shall  be  approved  of  by 
the  Court  of  Quarter  Sessions  of  the  county  where  the  master  or  mistress  lived. 
Act  of  11th  April,  1799.  (Purd.  Dig-.  12.  4  Dall.  Laws,  475.  3  Sm.  Laws,  385.) 
Kennedy  v.  Savage,  2  P.  A.  Browne's  Rep.  178. 

(1)  Acts  of  Congress  of  31st  May,  1790,  and  29th  April,  1802.    Ingersoll's  Dig-. 
Laws  U.  S.  149,  151. 

(2)  Acts  of  Congress  of  21st  Feb.  1793,  and  April  17th,  1800.    Ingersoll's  Dig-. 
656,  660, 


|53  OF  THE  F.XECUTOR?S  INTEREST  [BOOK  II. 

is  not  divested  of   them;  they  are  still   esteemed   assets    in   his 

hands  (g). 

But,  to  give  the  executor  a  title,  or  to  constitute  assets,  the  ab- 
solute property  of  such  chattels  must  have  been  vested  in  the  tes- 
tator; and,  therefore,  if  A.  take  a  bond  in  trust  for  B.  and  die,  it 
[154]  shall  form  no  part  of  the  assets  of  A.  (h).  So,  if  the  obligee 
assign  a  bond^and  covenant  not  to  revoke  the  assignment,  the  bond 
shall  not  be  included  among  his  assets  (i). 

Nor  shall  goods,  bailed  or  delivered  for  a  particular  purpose,  as 
to  a  carrier  to  convey  to  London,  or  to  an  inn-keeper  to  secure  in 
his  inn,  be  assets  in  the  hands  of  their  respective  executors.  Nor, 
till  the  time  for  redemption  is  past  (k),  shall  goods  pledged  or 
pawned  in  the  hands  of  the  executor  of  the  pawnee,  nor  goods  dis- 
trained for  rent  or  other  lawful  cause,  be  regarded  as  the  assets  of 
the  party  distraining.  Nor,  if  the  testator  were  outlawed  at  the 
time  of  his  death,  shall  his  effects  be  so  considered  (/). 

If  A.  consent  to  a  disposition  of  the  goods  of  the  intestate,  and 
afterwards  take  out  administration,  he  shall  be  bound  by  the  ante- 
cedent gift  (m):  but,  if  the  executor  make  a  fraudulent  gift  of  them, 
they  shall  continue  assets  (n). 

Such  deeds  and  writings  as  relate  to  terms  for  years,  or  other 
chattels,  or  are  securities  for  debts,  belong  to  the  executor  (o). 

[155]  Also  the  property  in  the  coffin,  shroud,  and  other  apparel 
of  the  dead  body,  remains  in  the  executor  (p). 

Chattels,  whether  real  or  personal,  may  be  held  not  only  in  se- 
veralty, but  also  in  joint-tenancy.  Thus,  if  a  lease  for  years  be 
granted,  or  a  horse  be  given,  to  two  or  more  persons  absolutely, 
they  are  joint-tenants  of  it;  and  unless  the  jointure  be  severed,  it 
shall  be  the  exclusive  property  of  the  survivor  (q).  If  the  jointure 
be  severed,  as  by  either  of  them  assigning  his  interest,  or  selling 
his  share,  the  assignee  or  vendee,  and  the  remaining  lessee  or  part 
owner,  shall  be  tenants  in  common  without  any  jus  accrescendi, 
or  right  of  survivorship  (r).  So  if  a  sum  of  money  be  given  by 
will  to  two  or  more,  equally  to  be  divided  between  them,  they 
shall  be  tenants  in  common  (■?).  On  the  principle  also  of  encou- 
raging husbandry,  and  commerce,  stock  on  a  farm,  although  oc- 
cupied jointly,  or  stock  of  a  partnership  in  trade,  shall  always,  in- 
dependently of  any  express  contract  to  that  effect,  be  considered  as 

(g)  Off.  Ex.   113.     Off.  Ex.  Suppl.  Skin.  274.  S.  C.  3  Mod.  276.  vid.  infr. 

56.     5  Co.  33  b.     11  Vin.  Abr.  230.  (a)  3  Bac.  Abr.  58.    Cro.  Eliz.  405. 

(h)  3  Bac.  Abr.  58.    Deering  v.  Tor-  (o)  3  Bac.    Abr.  65.     Off.    Ex.  63. 

rin°lon,  Salk.  79.  Jones  v.  Jones,  3  Bro.  Ch.  Rep.  80.. 

(i)  Ibid.  (p)  2  Bl.   Com.  429. 

(It)  Vid.    Shep.   Touchst.   496.  (?)  Bl.  Com.  399.  Com.  Dig.  Estates. 

(/)  2  Bl.  Com.  395,  396.  3  Bac.  Abr.  K.  Litt.   S.  281.     Harg.    Co.    Litt.  46 

58.     Shep.  Touchst.  498.  b.    and  182.  note   1.     Lady  Shore    v. 

(m)  Com.  Dig.  Admon.  B.   10.     Per  Billing-sly,  1  Vern.  482. 

two  Just.  Holt,  C.  J.  contr.   Whitehall  (r)  Litt.  S.  321.  Com.  Dig.  Estates. 

v.    Squire,    1    Salk.    295.      S.    C.      S  K.   5.    Svm's  Case,  Cro.   Eliz.  33. 

Salk.  161.     S.  C.     Carth.  103.     S.  C.  .  O)  1  Eq.  Ca.   Abr.  292. 


CHAP.   II.]  IN  CHATTELS  PERSONAL.  155 

common,  and  not  as  joint  property;  and  therefore  in  these  in- 
stances there  shall  be  no  survivorship,  but  the  interest  of  the  party- 
dying  shall  vest  in  his  executor  (t).  At  law,  it  is  true,  the  remedy 
[156]  survives,  yet  the  duty  does  not  survive;  and,  therefore,  if 
one  of  two  joint  merchants  die,  the  action  for  money  due  to  them 
survives  for  the  survivor,  and  the  executor  of  the  deceased  cannot 
join  in  an  action.  But  the  survivor,  on  recovery,  is  liable  to  an 
action  of  account  by  the  executor  (u).  Such  actions,  however, 
are  in  a  great  measure  superseded,  by  the  more  effectual  jurisdic- 
tion of  a  court  of  equity  in  matters  of  account. 

Chattels  personal  in  the  hands  of  an  executor  may,  in  certain 
cases,  be  changed  into  chattels  real,  and  so  vice  versa;  as,  if  a  debt 
he  due  to  J.  S.  as  executor,  on  statute,  recognizance,  or  judgment, 
and  he  sue  out  execution,  and  take  the  lands  of  the  debtor  in  ex- 
tent, the  personal  duty  is,  in  that  case,  converted  into  a  chattel 
real:  on  the  other  hand,  if  such  estate  by  extent,  or  a  mortgaged 
term,  devolve  on  an  executor,  and  the  debtor  or  mortgagor  pay 
the  money  due,  such  chattels  real  are  turned  into  chattels  per- 
sonal (x). 

(i!)  2  Bl.  Com.  399.  Com.  Dig-.  Mer-  Craddock,   3  P.  Wins!  161. 

chant  D.     Harg.    Co.    Litt:   182.  and  (u)    Martin   v.    Crump,    Salk.    444. 

note  4.     2  Brownl.  99.    Nov.  55.  Jef-  Kemp  v.  Andrews,  Show.  188. 

fereys  v.   Small,  1  Vern.  217.      Kemp  (x)  Off.    Ex.  75.    3  Bl.  Com.  420. 
v.  Andrews,  Carth.  170.    See  Lake  v. 


14 


(     157     j 


CHAP.   III. 

OF  THE  INTEREST  OF  THE  EXECUTOR  OR  ADMINISTRATOR  IN  SUCH 
OF  THE  CHATTELS  AS  WERE  NOT  IN  THE  DECEASED'S  POSSESSION 
AT  THE   TIME   OF   HIS   DEATH.' 


Sect.  I. 
Of  his  interest  in  choses  in  action. 

I  proceed  now  to  treat  of  such  of  the  testator's  effects  as  were 
not  in  his  possession  at  the  time  of  his  death;  and  in  this  class  I  am 
first  to  consider  choses,  or  things  in  action,  as  well  those  where  the 
cause  of  action  accrued  in  the  testator's  lifetime,  as  those  where  it 
accrued  after  his  death. 

In  regard  to  the  first,  the  executor  is  entitled  to  the  testator's 
debts  of  every  description,  either  debts  of  record,  as  judgments, 
statutes,  and  recognizances;  or  debts  due  on  special  contracts,  as  for 
rent;  or  on  bonds,  covenants,  and  the  like  under  seal;  or  debts  on 
simple  contracts,  as  notes  unsealed,  and  promises  not  in  writing, 
either  express  or  implied;  and  all  such  debts,  when  received  by  the 
executor,  shall  be  assets  in  his  hands  («). 

[15SJ  An  executor  is  also  entitled,  pursuant  to  stat.  4  Ed.  3.  c. 
7.  (1)  to  a  compensation  in  damages  for  a  trespass  committed  on 
the  testator's  goods  in  his  lifetime;  and  by  the  equity  of  that  sta- 
tute, for  a  conversion  of  the  same,  or  for  trespass  with  cattle  in 
his  close  (b);  or  for  cutting  his  growing  corn,  which  is  a  chattel, 
and  carrying  it  away  at  tbe  same  time  (c);  and  by  the  same  liberal 
construction  of  the  above-mentioned  statute,  the  executor  is  also 
entitled  to  a  debt  accrued  to  the  testator  under  the  stat.  of  2  &  3 
Ed.  G.  c.  13.  for  not  setting  out  tithes  (d);  to  a  quare  impedit, 
for  a  disturbance  of  his  patronage  (e);  to  ejectment,  for  ejecting 
him(y);  and,  in  short,  to  every  other  injury  done  to  his  personal 
estate  previous  to  his  death. 

An  executor  shall  also  have  damages  for  the  breach  of  a  coven- 
ant to  do  a  personal  thing  («■) ;  and  although  the  covenant  sound  in 

(a)    Off.    Ex.  65.     3  Bac.  Abr.  59.  (d)  Holl  v.     Bradford,    1    Sid.     88. 

Com.  Dig.  Admon.  B.    13.  407.      Moreton's    case,   1    Ventr.    30. 

(w)   3  Bac.  Abr.  59.  Com.  Dig.  Ad-  Poph.   189. 

nion    B.  13.  Off.  Ex.  70.  Lat.  168.  (e)  Off.  Ex.  66,  67. 

(c)  Emerson   v.    Emerson,   1  Ventr.  (/)  Poph.   189. 

187.  (g)  Lat.    168.   3  Bac.  Abr.   59. 

I  1  )  In  force  in  Pennsylvania.,  Roberts'  Digt.248.  3  Binn.  7  Sergf.  8c  Rawle,  184j 


CHAP.  III.]     OF  THE   EXECUTORS  INTEREST;  &C.  158 

the  realty,  as  for  not  assuring  lands,  yet  if  it  be  broken  in  the  tes- 
tator's lifetime,  the  executor  shall  be  entitled  to  damages  (A)  ;  (1) 
and  the  damages  in  any  of  these  cases,  when  recovered,  shall  be  re- 
garded as  assets. 

So  the  executor  of  the  assignee  of  a  bail-bond  shall  recover  on 
[159]  that  instrument,  inasmuch  as  it  is  a  vested  interest  (i). 

So  an  executor  is  entitled  to  damages  against  a  sheriff  for  per- 
mitting a  party  in  execution  on  a  judgment  recovered  by  the  testa- 
tor to  escape  ;  even  although  the  escape  happened  in  the  testator's 
lifetime  (/»■).  An  executor  may  also  demand  damages  of  a  sheriff 
for  not  returning  his  Writ,  and  paying  money  levied  on  a  fiere.  fa- 
cias (I)  ;  or  for  a  false  'return  stating  that  he  had  not  levied  the 
whole  debt,  when  in  fact  he  had  {in).  So  if  the  testator  in  his 
lifetime  were  entitled  to  a  writ  of  error,  or  audita  querela,,  or  to 
the  antiquated  remedies  of  attaint,  deceit  or  identitate  nominis, 
the  executor  has  a  right  to  recover  such  compensation  as  the  testa- 
tor might  have  claimed  ;  and  whatever  he  so  recovers  shall  be  as- 
sets in  his  hands  (n).  So,  an  executor  is  entitled  to  replevy  goods 
of  the  testator  (o)  ;  or  to  recover  damages  of  an  officer  for  remov- 
ing goods  taken  in  execution  before  the  testator,  who  was  the  land- 
lord, had  been  paid  a  year's  rent  (p).  And,  in  general,  an  execu- 
tor has  a  right  to  a  compensation,  whenever  the  testator's  personal 
estate  has  been  damnified,  and  the  wrong  remains  unredressed  at 
the  time  of  his  death. 

[160]  But  an  executor  has  no  right  to  an  action  for  an  injury 
done  to  the  person  of  the  testator  {q)  ;  nor  for  a  prejudice  to  his 
freehold;  as  for  felling  trees,  or  cutting  the  grass,  for  the  trees  and 
grass  are  parcel  of  the  same  (r).  (2) 

An  executor  shall  also  have  the  benefit  of  any  equitable  title  of 
the  testator  in  respect  to  personal  property  ;  and  money  recovered 
by  the  executor  by  decree  in  a  court  of  equity  shall  be  assets  (s). 

(h)  Com.  Dig.  Admon.  B.   13.  Com.  (m)  Williams  v.  Crey,  1  Salk.  12. 

Dig.  Covenant.  B.  1.    Lucy  v.  Leving-  (»)  3  Bac  Abr.  60.     Off.  Ex.  71. 

ton,  1  Ventr.  176.  lb.  Cooke  v.  Foun-  (o)  1  Sid.  82.   Off.  Ex.  66. 

tain,  347.    Lucy  v.   Levington,  2  Lev.  (p)  Com.   Dig.  Admon.  B.  13.  Pal- 

26.  Off.  Ex.  65.  grave  v.   Windham,  Stra.  212. 

(i)  Com.  Dig.  Admon.  B.  13.  For-  {q)  Lat.  168,169.  1  And.  243.  Ma- 
tes. 367.  son  v.  Dixon,  Jon.  174. 

(k)  Com.  Dig.  Admon.  B.  13.  Spur-  (r)  Emerson  v.   Emerson,    1  Ventr. 

stow  v.   Prince,  Cro.  Car.  297.     Mod.  187.  Off.  Ex.  68. 

Ca.  126.  (s)    3  Bac.   Abr.  59.     Harecourt  v. 

(/)  Com.  Dig.  Admon.  B.  13.    Spur-  Wrenham,    Moore,     858.     Ratcliff    v. 

stow  v.  Prince,  Cro.  Car.  297.  Graves,  2  Chan.  Ca.  152.  Brownl.  76. 


(1)  Watson,  adm.  v.  Blane  et  al.  12  Serg.  &  Rawle,  131.  And  an  administrator 
cum  Ustamento  annexo  may,  by  virtue  of  the  Act  of  12th  March,  1800,  (Purd.  Dig. 
277,  278.)  maintain  ejectment  on  the  non-payment  by  the  vendee  of  the  purchase 
money  of  lands  sold  by  the  former  executor,  under  the  authority  of  the  will. 
Cornell  v.  Green,  10  Serg.  &  Rawle,  14. 

(2)  Nor  an  action  of  debt  for  the  penalty,  under  the  Act  of  28th  March,  1814, 
|  Purd.  Dig.  223,)  establishing  the  fee  bill.     Rccd  v.  Cist,  7  Serg.  &  Rawle,  183, 


160  OF  THE  EXECUTOR'S  INTEREST     [BOOK  II. 

In  all  the  above-mentioned  cases,  I  suppose  the  cause  of  action 
to  have  accrued  before  the  death  of  the  testator.  But  where  it 
accrues  after  that  event,  the  executor  is  equally  entitled  to  the  debt 
or  damages. 

Therefore,  if  A.  contract  to  deliver  certain  goods  to  B.  on  a 
certain  day,  and  they  are  not  delivered  in  the  lifetime  of  B.,  but 
after  his  death  to  his  executor,  he  shall  be  possessed  of  them  in 
that  character,  and  they  shall  be  assets  in  his  hands;  as  in  case  the 
contract  had  not  been  performed,  damages  recovered  for  the  non- 
performance would  have  been  so  considered  (7).  So  if  A.  cove- 
nant with  B.  to  grant  him  a  lease  of  certain  land  by  a  certain  day, 
and  B.  die  before  the  day,  and  before  the  grant  of  the  lease,  A. 
is  bound  to  grant  it  to  the  executor  of  B.,  and  it  shall  be  vested  in 
[161]  him  as  executor  and  consequently  be  assets  (u).  Or,  if  A. 
refuse  to  grant  the  lease,  he  is  liable  to  make  a  compensation  to  the 
executor  of  B.  in  damages,  which  shall  also  be  assets  (v). 

So  where  a  father  possessed  of  a  term  for  years  held  of  the  church, 
renewable  every  seven  years,  assigned  the  lease  to  his  son  in  trust 
for  himself  for  life,  remainder  in  trust  for  the  son,  his  executors, 
administrators,  and  assigns  ;  and  the  father  covenanted  to  renew 
the  lease  every  seven  years  as  long  as  he  should  live.  The  son 
died  and  the  seven  years  elapsed,  when  the  executors  of  the  son 
filed  a  bill  to. compel  the  father  to  renew  the  lease  at  his  own  ex- 
pence.     It  was  decreed  accordingly  (w). 

A  bail-bond  may  also  be  assigned  to  a  deceased  plaintiff's  execu- 
tor, and  he  shall  be  equally  entitled  to  recover  u^on  it,  as  if  it  had 
been  assigned  to  the  testator  in  his  lifetime  (#). 

If  a  defendant  in  execution  at  the  testator's  suit  escape  after  the 
testator's  death,  the  executor  shall  recover  damages  for  the  escape, 
and  the  damages  so  recovered  shall  be  assets  (y).  So  an  executor 
is  entitled  to  replevy  goods  taken  after  the  death  of  the  testator  (z). 
So,  if  A.  die  possessed  of  a  term  for  years  in  an  advowson,  such 
term  shall  vest  in  his  executors;  and  in  case  of  their  being  disturb- 
ed, they  shall  recover  damages  in  a  quare  impedit,  and  such  dama- 
ges shall  be  assets  (a). 

If  an  executor  have  an  equitable  title  to  property  in  that  charac- 
ter, and  he  institute  a  suit  for  the  same,  and  it  be  decreed  to  him 
in  a  court  of  equity,  it  shall  also  be  assets  (b). 

Where  the  cause  of  action  accrued  before  the  testator's  death, 
[162]  neither  debts  nor  damages  shall  be  assets,  till  they  are  actu- 
ally recovered  by  judgment,  and  levied  by  execution,  or  otherwise 
reduced  into  possession  (c). 

tt)  Off.  Ex.  82.  O)  Off.   Ex.  36. 

(u)  Off.  Ex.  82.  11  Vin.  Abr.  231.         (a)  Ibid. 
L.  of  Ni.  Pri.  158.  supr.  144.  (b)  Com.  Dig.  Assets  C.     Roll.  Abr. 

(u)  Plowd.  286.  920.     Ilarcourt  v.  Wrenham,   Moore, 

(w)  Husband    v.    Pollard,   Feb., IT.  858. 
18,  19,  cited  2  P.  Wms.  467.  (c)  11  Vin.  Abr.  239,  240.     3  Bac 

(x)  Forres.  370.  Abr.    60.    Jenkins  v.  Plume,    1   Salk. 

(,y)    Com.    Dig.    Admon.     B.     13'.  207.     Shep,  Touchst.  497. 
Gcdb.  262.    Vid.   1  Roll.  Rep.  276. 


CHAP.    III.]  IN  CHOSES   IN   ACTION.  162 

Nor  shall  the  balance  of  an  account  stated  with  the  executor 
subsequently  to  the  testator's  death  be  assets,  unless  he  has  reco- 
vered the  same,  and  has  it  actually  in  his  hands,  for  the  promise 
to  the  executor  on  the  account  stated,  creates  no  new  cause  of  ac- 
tion, but  ascertains  merely  the  old  cause  of  action  which  existed 
in  the  testator's  lifetime  (d).  But  such  debts  or  damages  recover- 
ed may  be  assets,  although  never,  in  point  of  fact,  received,  as  if 
they  be  released  by  the  executor.  For  the  release,  in  contempla- 
tion of  law,  shall  amount  to  a  receipt  (e). 

Where  the  cause  of  action  accrues  after  the  testator's  death,  the 
debt  or  damages  shall  be  assets  immediately.  As  where  money 
was  had  and  received  by  the  defendant  to  the  use  of  the  plaintiff 
as  executor,  it  was  held,  that  if  the  defendant  received  the  money 
by  the  consent  or  appointment  of  the  plaintiff,  it  was  assets  in  his 
hands  immediately  ;  if  without  his  consent,  yet  the  bringing  of  the 
action  was  such  a  consent,  as  that  on  judgment  obtained  it  should 
be  assets  immediately  without  execution  (/"). 

[163]  If  a  covenant  affect  the  realty,  and  the  breach  be  subse- 
quent to  the  testator's  death,  the  heir,  and  not  the  executor,  as  is 
hereafter  shewn,  shall  be  entitled  to  the  damages. 

If  a  joint  merchant  die,  his  interest  in  the  choses  in  action  be- 
longing to  the  partnership  devolves  on  his  executor  in  the  same 
manner  as  the  other  joint  property  («•).  It  has  been  even  held 
that  the  executor  of  the  deceased  shall  join  with  the  surviving  mer- 
chant in  an  action  for  goods  carried  away,  or  money  had  and  re- 
ceived in  the  testator's  lifetime  (h).  But  it  has  been  doubted  whe- 
ther the  executor  and  surviving  partner  must,  or  can  join  in  such 
action  (i),  and  it  has  been  adjudged  to  the  contrary,  and  such  ad- 
judication seems  now  to  be  established,  on  the  ground  'that  al- 
though the  duty  survive  not,  the  remedy  does  survive,  and  there- 
fore must  be  enforced  by  the  latter  alone  (k),  (1)  who  will  still  be 
accountable  to  the  executor  as  above  stated  (/). 

(d)  11  Vin.  Ab.  240.  Jenkins  v.  v.  Huffam,  2  Lev.  188.,  and  228.  S.  C. 
Plume,  1  Salk.  207.  1  Freem.  468. 

(e)  3  Bac.  Abr.  60.  Cooke  v.  Jen-  (i)  Kemp  v.  Andrews,  Show.  189, 
nor,  Hob.  66.  Brightman  v.  Keighley,  S.  C.  3  Lev.  290,  291. 

Cro.  Eliz.  43.  (k)  Kemp  v.  Andrews,    Carth.  170. 

(/)  Jenkins  v.  Plume,  1  Salk.  207.  Martin    v.    Crump,-  Salk.   444.      Vid. 

(g)  Harg.  Co.  Litt.  182.   Com.  Dig.  S.   C.  1  Ld.  Raym.  340.,  and  Smith  v. 

Merchant.  D.  Barrow,  2  Term  Rep.  476. 

(k)    Com.  Dig.  Merchant.  D.     Hall         (/)  Supr.  155. 

(1)  5  Serg.  &  Rawle,  86.  Wallace  v.  Fitzsimons,  1  Dall.  Rep.  248.  M'Carty 
v.  Nixon,  2  Dall.  Rep.  65,  n.     Peters  v.  Davis,  7  Mass.  Rep.  257. 


164  OF  THK  EXIiCUTOM's   INHERES!  |  BOOK  II. 


[164]     Sect.   II. 

Of  interests  vested  in  him  by  condition,  by  remainder  or  in- 
crease, by  assignment,  by  limitation,  and  by  election. 

An  executor  may  become  entitled  in  such  character  to  chattels 
real  or  personal  by  condition.  As  if  a  lease  for  years,  or  other 
chattel,  has  been  granted  by  the  testator  to  A.,  on  condition  that 
if  A.  do  not  pay  a  certain  sum  of  money,  or  perform  some  other 
specific  act,  within  a  limited  time,  the  grant  shall  be  void,  and  the 
condition  is  not  performed,  such  chattel  shall  result  to  the  execu- 
tor, and  be  assets  (a).  So,  where  the  condition  is,  that  the  testa- 
tor, or  his  executors,  shall  pay  a  sum  of  money  to  avoid  the  grant, 
and  the  executor  shall  pay  it  accordingly:  As  if  A.  mortgage  a  lease, 
or  pledge  a  jewel,  or  piece  of  plate,  and  before  the  day  limited  for 
redemption  or  payment  die,  his  executor  is  entitled  to  redeem  at 
the  day  and  place  appointed  (Z>).  If  he  redeem  with  the  testator's 
money,  such  chattels  shall  be  assets  (c).  If  he  redeem  with  his 
own  money,  Tie  shall  be  indemnified  in  respect  to  the  sum  he  has 
disbursed  out  of  the  effects  of  the  testator,  or,  if  necessary,  by  the 
[165]  sale  of  the  chattel  itself;  and  in  that  case  the  surplus  over 
and  above  such  indemnity  shall  be  assets  (d).  In  case  he  have 
no  fund  as  executor,  and  he  advance  the  money  out  of  his  own 
purse  for  the  redemption,  and  it  be  fully  equivalent  to  the  value 
of  the  chattel,  the  property  is  altered  by  such  payment,  and  shall 
be  vested  in  the  executor  as  a  purchaser  in  his  own  right  (e).  But 
if  the  executor  disbursed  his  own  money  to  redeem,  after  the  time 
specified  for  redemption  is  elapsed,  then  it  is  said  that  the  chattel, 
without  any  distinction  in  respect  to  its  value,. shall  at  law  belong 
to  the  executor  in  his  own  right  ;  since  in  such  case  it  must  be 
deemed  to  be  sold  to  him  by  the  mortgagee  or  pawnee,  who  after 
the  forfeiture  is  incurred,  has  a  legal  right  to  dispose  of  it  at  his 
pleasure  to  him,  or  to  any  other  person.  But  in  equity,  the  excess 
in  the  value  of  the  thing  beyond  the  money  paid  for  the  redemp- 
tion shall  be  regarded  as  assets  in  the  hands  of  the  executor  (/). 

Chattels  which  were  never  vested  in  the  testator  in  possession, 
may  accrue  to  an  executor  by  remainder,  or  increase.  As,  if  a 
lease  be  granted  to  A.  for  life,  remainder  to  his  executors  for  years, 
such  remainder  shall  be  assets  in  the  hands  of  his  executor,  though 
it  could  never  come  into  the  possession  of  the  testator.  In  like 
manner,  where  a  lease  for  years  is  given  by  will  to  A.  for  life,  and 
[166]  on  his  death  to  B.,  and  B.  dies  before  A.,  although  the 
term  were  never  in  B.,  yet  it  shall  devolve  on  his  executor,  and 

(a)  Off.  Ex.  76.  Ex.  79.     2'l'onbl.  404,  n.  f. 

\b)  Ibid.  76,  77-  (')  3  Bac.  Abr.  .58.      Kellw.  63. 

(r)   Ibid.  81.  (/)  Ofl'.  Ex.  81. 

(d)  3  Bac.  Abr.  58,  SO.  in  flote.  Oil. 


CHAP.   IH.]       Bf  CONDITION  OK   REMAINDER.  166 

be  assets.  So  a  remainder  in  a  term  for  years,  though  it  never 
vested  in  the  testator's  possession,  and  though  it  continue  a  re- 
mainder, shall  go  to  the  executor,  and  shall  be  assets,  for  it  bears  a 
present  value,  and  is  capable  of  being  sold  (g). 

So  the  young  of  cattle,  or  the  wool  of  sheep  produced  after  the 
testator's  death,  shall  be  assets  (A).  So  if  an  executor  of  a  lessee 
for  years  enter  on  the  lands  demised,  the  profits  over  and  above 
the  rent  shall  be  so  regarded  (i). 

A  trade,  generally  speaking,  is  determined  by  the  death  of  the 
trader.  Articles  of  partnership  in  trade  subsist  not  for  the  benefit 
of  executors  of  a  deceased  partner,  unless  they  contain  a  proviso 
to  that  effect  (k)  :  They  may  contain  such  proviso  :  (1)  Or  the  tes- 
tator may  by  his  will  direct  his  executors  to  carry  on  his  trade  af- 
ter his  death,  either  with  his  general  assets,  or  appoint  a  specific 
fund  to  be  severed  from  the  general  mass  of  his  property  for  that 
purpose  (/).  Executors  may  also  carry  on  their  trade  in  their  re- 
[167]  presentative  character  under  the  direction  of  the  Court  of 
Chancery  (?n).  In  all  these  instances,  and  a  fortiori  in  case  the 
executor  shall  take  upon  himself  to  carry  on  the  testator's  trade, 
the  profits  of  such  trade  shall  be  assets  for  which  he  shall  be  ac- 
countable. 

An  executor  may  also  take  under  the  description  of  an  as- 
signee. 

Assignees  are  such  persons  as  the  party  who  has  a  power  of  as- 
signment actually  assigns  to  receive  the  chattel;  as  if  A.  contract  to 
deliver  a  horse  on  a  given  day  to  B.  or  his  assigns,  then  if  B.  ap- 
point J.  S.  to  receive  the  horse,  J.  S.  is  an  assignee  in  deed  (n). 

But  an  executor  is  an  assignee  in  law,  because  by  law  he  is  the 
representative  of  the  testator,  and  is  entitled  to  all  his  goods  and 
chattels,  and  the  benefit  of  all  personal  contracts  entered  into  with 
him;  and  therefore  in  the  case  just  mentioned,  if  B.  die  before  the 
day  limited  for  the  delivery  of  the  horse,  it  ought  to  be  delivered 
to  his  executor;  for  by  law  he  is  the  assignee  of  B.  for  such  a  pur- 
pose (o). 

So,  if  a  legacy  is  bequeathed  to  A.  and  his  assigns,  and  A.  die 
before  payment,  it  shall  go  to  his  executor  or  administrator,  as  as- 
[168]  signee  (/?).  So,  if  A.  be  bound  to  deliver  a  true  rental  to 
J.  S.  or  his  assignee  at  the  end  of  twenty  years,  and  he  die  before 
that  time  has  elapsed,  A.  is  bound  to  deliver  a  true  rental  to  his 

(g)  Off.  Ex.  83.     Vid.  2  Fonbl.  371,  110. 

note  (k).  (m)  Pearce  v.  Chamberlain,  2  Vez. 

(A)  Off.  Ex.  83.  33.     Barker  v.  Parker,    1  Term  Rep. 

(!)  Com.  Dig'.  Assets.  C.  Buckley  v.  295.    Aid.  Off.  Ex.  83.  and  3  Bro.  C.  C. 

Pirk,  1  Salk.  79.     Vid.  Off  Ex.  84,"85.  552. 

and  supr.  143.  O)  Plowd.  288. 

(A-)  Pearce  v.  Chamberlain,  2  Vez.  (o)  Ibid 


(/)  Ex  parte  Garland,  10  Yes.  jun. 


(p)  11  Yin.  Abr.  15(5. 


(1)   Gitettzv.  Bayard',  11  S^hj.  *&  Ea^'Te,  41'. 


168  OF  THE  EXECUTOR'S  INTEREST      [BOOK  II. 

executor,  for  he  is  assignee  in  point  of  law  (q).  So,  if  A.  be  bound 
to  abide  by  the  award  of  two  arbitrators,  and  they  award  that  he 
shall  pay  to  B.  or  his  assigns  two  hundred  pounds  before  a  day  li- 
mited for  that  purpose,  and  B.  die  before  the  day,  the  money  shall 
be  paid  to  his  executor  as  assignee  (r).  Or,  if  A.  covenant  to  grant 
a  lease  to  J.  S.  and  his  assigns  by  Christmas,  and  J.  S.  die  before 
that  time,  and  before  the  grant  of  the  lease,  it  must  be  made  to  his 
executors  as  his  assigns  (s).  So,  if  a  lessor  covenant  to  build  anew 
house  for  the  lessee  and  his  assigns,  the  executor  of  the  lessee  shall 
have  the  benefit  of  the  covenant  as  assignee  (/).  But  where  a  bond 
was  conditioned  for  the  obligor's  paying  twenty  pounds  to  such 
person  as  the  obligee  should  by  his  will  appoint,  and  he  nominated 
J.  S.  his  executor,  but  made  no  other  appointment,  it  was  resolved, 
that  the  executor  should  not  have  the  twenty,  pounds,  for  he  is  only 
an  assignee  in  law,  and  takes  to  the  use  of  the  testator,  but  that  in 
that  case  the  condition  was  in  favour  of  an  actual  assignee,  who 
takes  to  his  own  use  («). 

[169]  So,  it  has  been  held,  that  if  A.  be  bound  to  pay  ten  pounds 
to  the  assignee  of  B.  the  obligee,  B.'s  executor  shall  not  have  the 
ten  pounds:  But  that  if  A.  be  bound  to  pa)T  ten  pounds  to  B.  or  his 
assignee,  then  the  executor  of  B.  shall  be  entitled,  because  it  was  a 
right  vested  in  the  obligee  himself  (v). 

So,  before  the  provisions  of  the  statute  of  frauds  in  regard  to 
estates  pur  auter  vie  (w),  if  a  lease  were  granted  to  A.  and  his 
assigns  during  the  life  of  B.  it  could  go  only  to  A.'s  assignee  in 
deed,  and  not  to  his  executors  (x).  And,  on  his  failure  to  appoint 
such  assignee,  it  was,  in  case  of  his  death,  open  to  be  appropriated 
by  the  first  occupant  that  could  enter  upon  ft  during  the  life  of  cestui 
que  vie. 

But  where  on  a  fine  the  use  of  land  was  limited  to  A.  for  eighty 
years,  with  a  power  to  A.  and  his  assigns  to  make  leases  for  three 
lives,  to  commence  after  the  expiration  of  the  term:  A.  assigned 
over  to  B.;  B.tlied,  having  made  his  will  and  appointed  C.  his  ex- 
ecutor: C.  assigned  over  to  D. ;  and  D.  in  pursuance  of  the  power, 
made  a  lease  for  life:  The  question  was,  whether  D.  was  such  an 
assignee  of  A.  as  to  have  a  power  to  make  this  lease,  or  whether  it 
should  extend  only  to  the  immediate  assignees  of  A.;  a  point  the 
more  doubtful,  as  there  had  been  a  descent  on  an  executor.  On  its 
being  objected,  that  an  executor  should  not  in  some  cases  be  said  to 
[170]  be  a  special  assignee,  the  court  seemed  inclined  to  the  con- 
trary; and  that  D.  should  be  considered  as  an  assignee  for  the  pur- 
pose of  making  the  leases  in  question,  as  well  as  any  person  that 
should  come  to  the  estate  under  the  first  lessee,  though  there  should 

(//)  11  Vin.  Abr.  156.    1'rver  v.  Gild-  Hob.  9.      Godb.    192.     Harg1.  Co.  I.itt. 

rid^e,  Mob.  10.  2l0.  note  1. 

(r)   11  Vin.  Abr.  157.     1  Leon.  316.  (r)   11  Vin.  Abr.  161.     Godb.  192. 

(.9)   11  Vin.  Abr.  158.      Off.  Ex.  101.         (V)  Vid.  supr.  140. 
(7)  11  Vin.  Abr.  158.     La*.  261.  (.,■)   11  Vin.  Abr.  15S.    Off  Ex.  fOl 

{it)  11  Yin.  Abr.  156.  Pease  v.  \li-ml, 


CHAP.  111.]       BY  CONDITION  AND  REMAINDER.  170 

be  twenty  mesne  assignments;  and  on  a  subsequent  day  judgment 
was  given  accordingly  (y). 

An  executor  may  also  be  entitled  in  respect  of  limitation.  A 
contingent  or  executory  interest,  whether  in  real  or  personal  estate, 
is  transmissible  to  the  representative  of  the  devisee  when  such  de- 
visee dies  before  the  contingency  happens,  and,  if  not  before  dis- 
posed of,  will  vest  in  such  representative  when  the  contingency 
takes  place.  Thus  where  the  testator,  in  case  his  wife  should  die 
without  issue  by  him,  after  her  decease,  which  was  taken  to  mean 
immediately  after  her  decease,  gave  eighty  pounds  to  his  brother; 
and  after  the  testator's  death  the  brother  died  in  the  lifetime  of  the 
widow,  and  she  afterwards  died  without  leaving  any  issue:  It  was 
held  that  the  possibility  devolved  to  the  executors  of  the  brother, 
although  he  died  before  the  contingency  happened,  and  the  legacy 
was  decreed  accordingly  with  interest  from  the  widow's  death  (z). 
So  where  B.,  in  consideration  of  natural  love  and  affection  for  her 
niece,  and  to  secure  to  her  separate  use  her  personal  estate  to  trus- 
[171]  tees  in  trust  for  herself  during  her  life,  and  after  her  decease, 
and  payment  of  her  debts  and  funeral  expenses,  in  trust  for  the  sole 
and  separate  use  of  her  niece  alone,  and  not  for  her  husband,  or  for 
such  persons  as  she  should  appoint,  and  the  niece  died  in  the  life- 
time of  B. :  It  was  decided  that  the  contingent  interest  belonged 
to  the  representative  of  the  niece  (a).  And  in  like  manner,  where 
legacies  were  bequeathed  to  children,  to  be  transferred  to  them  at 
their  respective  ages  of  twenty-one  years,  or  days  of  marriage,  and 
that  in  case  any  of  them  should  die  under  that  age,  or  marry  with- 
out consent,  his  or  her  share  should  go  to  others  at  their  age  of  twen* 
ty-one  years,  Lord  Hardwicke  C.  decreed  that  a  share  accruing  by 
the  forfeiture  of  a  child's  marrying  without  consent  vested  in  ano- 
ther child  who  attained  twenty-one,  but  died  before  such  forfeiture, 
so  as  to  entitle  the  personal  representative  of  such  deceased  child 
to  an  equal  share  thereof  with  the  other  surviving  children  {b). 

If  a  legacy  out  of  the  personal  estate  is  bequeathed  to  A.,  to  be 
paid  when  he  is  of  the  age  of  twenty-one  years,  and  he  dies  before 
that  time,  his  executors  are  entitled  to  the  legacy;  immediately,  if 
it  be  payable  with  interest;  if  not,  when  A.  would  have  come  of 
age  (c).  But  if  such  legacy  be  bequeathed  to  A.  at  his  age  of 
twenty-one  merely,  or  if  he  shall  attain  the  age  of  twenty-one, 
[172]  and  he  die  before  that  period,  his  executors  have  no  ti- 
tle (e/).  (1) 

(,y)  Harg.  Co.  Litt,  210.  note  1.  Howe  Farndell.  Carth.  52.     Com.  Dig-.  Chan, 

v    Whitebank,  1  Freem.  476.      11  Yin.  3  Y.  8  Chan.  R.  112.     Clobberie'scase, 

Abr.  158.  2  Ventr.  342.    Lord  Pawlet's  case,  366. 

(z)  Pinbury  v.  Elkin,  1  P.  Wms.  553.  Anon.  2  Vera.  199. 

l'earne's  Conting.  Rem.  444.  (d)  Com.    Dig.   Chancery,    3  Y.    8. 

(a)  Peck  v.  Parrot,  1  Yez.  236.  Clobbevie's  case,  2  Ventr.  342.     Hut- 

(b)  Chauncy  v.  Gravdon,  2  Atk.  616.  chins  v.  Foy,  Com.  Rep.  2d  ed.  719. 

(c)  11   Yin.   Abr.    160.      Brown  v. 


l     See  Patterson  v.  Hawthorn,  12  Serg.  8c  Rawlfc,  112. 
1") 


172 


Of  THE  EXECUTOR^  INTEREST     [BOOK  II. 


This  distinction  with  respect  to  interests  arising  out  of  personal 
property,  as  far  at  least  as  they  are  of  a  legatory  nature,  although 
it  be  explained,  and  in  some  degree  corrected  by  the  more  modern 
cases,  is  in  substance  established  by  a  series  of  authorities  (e);  but 
although  the  legacy  out  of  the  personal  property  be  left  to  A.  at 
twenty -one,  yet  if  interest  is  given  before  the  time  of  payment,  that 
circumstance  is  held  to  be  evidence  of  an  intention  to  vest  the  le- 
gacy (f).  But  such  presumption  does  not  appear  to  be  formed 
from  that  circumstance  in  respect  to  any  interests  but  those  of  a 
legator)*  nature,  although  the  fund  be  merely  personal:  for  it  hath 
not  been  admitted  in  cases  of  portions  for  younger  children  to  be 
raised  out  of  such  fund  at  twenty-one,  with  interest  in  the  mean 
time  for  maintenance  and  education  (g). 

So  with  respect  to  all  interests  arising  out  of  land,  the  rules  on 
[173]  the  subject  are  totally  different:  for  whether  the  land  be  the 
primary  or  auxiliary  fund,  whether  the  charge  be  made  by  deed  or 
will,  as  a  portion  or  a  general  legacy  for  a  child  or  a  stranger,  with 
or  without  interest,  the  general  rule  is,  that  charges  on  land  paya- 
ble on  a  future  day  shall  not  be  raised  where  the  party  dies  before 
the  day  of  payment  (h).  (1)  This  rule  however  is  subject  to  many 
exceptions-,  as,  where  the  time  of  payment  is  postponed  from  the  cir- 
cumstances, not  of  the  person  but  of  the  fund.  As,  where  a  term 
was  created  for  daughters'  portions,  commencing  after  the  death 
of  the  father  and  mother,  on  trust  to  raise  the  portions  from  and  af- 
ter the  commencement  of  the  term.,  and  the  father  died  leaving  a 
daughter,  the  portion  was  decreed  to  be  vested,  but  not  raisable 
during  the  life  of  the  mother  (i). 


(e)  2  P.  Wins.  612.  Mr.  Cox's  note 
1.  Lampen  v.  Clowbery,  2  Ch.  Ca.  155. 
Smell  v.  Dee,  2  Salk.  415.  1  Eq.  Ca. 
Abr.  295.  Barlow  v.  Grant,  1  Vern. 
255.  Stapleton  v.  Cheales,  Prec.  Chan. 
318.  3  Bro.  P.  C.  337.  2  Eq.  Ca.  Abr. 
548.  Lowther  v.  Condon,  Barnard. 
329.  Steadman  v.  Palling-,  3  Atk.  427. 
(joss  v.  Nelson,  1  Burr.  227.  Barnes  v. 
Allen,  1  Bro.  Ch.  Rep.  181.  Monk- 
house  v.  Holme,  ib.  298.  Benyon  v. 
Maddison,  2  Bro.  Ch.  Rep.  75.  May  v. 
Yv'ood,  3  Bro.  Ch.  Rep.  471. 

(/)  2  P.  Wms.  612.  note  1.  Collins 
v.  Metcalfe,  1  Yern.  462.  Stapleton 
v.  Cheele,  2  Vern.  673.  S.  C.  Prec. 
Ch.  318.  Atkins  v.  Hiccocks,  1  Atk. 
501.  Van  v.  Clark,  1  Atk.  512.  Neale 
v.  Willis,  Barnard.  43.  Foncrean  v. 
Foncrean,  3  Atk.  645.  S.  C.  1  Vez. 
118.  Walcot  v.  Hall,  2  Bro.  Ch.  Rep. 
305. 

(g)  2  P.  Wms.  612.  note  1.  Targiis 
v.  PugeX,  2  Vez.  207.     Hubert  v.  Par- 


sons, ib.  262;  Goss  v.  Nelson,  1  Burr. 
227. 

(h)  Pitfield's  case,  2  P.  Wms.  515. 
612.  note  1.  Lampen  v.  Clowbery,  2 
Ch.  Ca.  155.  Poulet  v.Poulet,  1  Vern. 
204.  321.  Smith  v.  Smith,  2  Vern.  92. 
Yates  v.  Phittiplace,  ib.  416.  Carter 
v.  Bletsoe,  Prec.  Ch.  267.  Tournay 
v.  Tournay,  ib.  290.  Stapleton  v. 
Cheales,  ib.  318.  Jennings  v.  Looks, 
2  P.  Wms.  276.  Anon.  Mosel.  68. 
Neeve  v.  Kecke,  9  Mod.  106.  Gordon 
v.  Raynes,  3  P.  Wms.  134.  Bradley  v. 
Powell.  Ca.  Temp.  Talb.  193.  Prowse 
v.  Abingdon,  1  Atk.  482.  Hall  v.  Ter- 
ry, ib.  502.  Van  v.  Clark,  ib.  512. 
Boycot  v.  Cotton,  ib.  555.  Richardson 
v.  Greese,  3  Atk.  69.  Attorney-General 
v.  Milner,  ib.  112.  Oldfield  v.  Oldfield, 
1  Bro.  Ch.  Rep.  106.  in  note,  124.  in 
note.  Ashburne  y.  M'Guire,  2  Bro.  Ch. 
Rep.  108. 

(i)  2  P.  Wms.  612,  note  1.  Lowther 
v.  Condon,  2  Atk.  127.  130.   S.  C.  Bar- 


O)   12  Serg-.  &  Ruwle,  114. 


CHAP.  III.]       BY  LIMITATION  AND  ELECTION.  173 

And  where  a  legacy  was  charged  upon  real  estate,  to  vest  im- 
mediately on  the  testator's  death,  but  to  be  paid  to  the  legatee  on 
attaining  21,  and  the  interest  to  be  applied  in  the  mean  time  for 
maintenance,  and  the  legatee  died  before  attaining  21:  it  was  held, 
that  the  express  direction  that  the  legacy  should  vest  on  the  death 
of  the  testator,  prevented  its  sinking  for  the  benefit  of  the  devisee, 
and  that  the  personal  representative  of  the  legatee  was  entitled  to 
the  legacy  (i). 

In  respect  to  those  cases  where  portions  have  been  given  out  of 
land,  and  no  time  of  payment  expressed,  it  seems  difficult  to  re- 
concile the  determinations.  According  to  one  class,  their  interest 
is  vested  immediately,  and  transmissible:  according  to  another, 
[174]  such  portions  shall  not  vest,  if  the  children  die  before  they 
want  them  (A"). 

But  if  lands  be  devised  for  payment  of  portions,  and  one  of  the 
children  entitled  to  a  portion  die  after  it  becomes  due,  though  be- 
fore the  lands  are  sold,  the  personal  representative  of  such  child 
will  clearly  be  entitled  to  the  money  (I). 

In  those  cases,  in  which  both  the  real  and  personal  estates  are 
charged  with  a  legacy,  as  far  as  the  executor  claims  out  of  the  lat- 
ter he  shall  succeed  according  to  the  rule  of  the  spiritual  e^ourt 
where  such,  claim  is  determinable,  though  the  infant  legatee  die 
before  the  time  of  payment,  and  consequently  the  legacy,  so  far 
as  it  is  charged  upon  the  land,  shall  sink  (m).  (1) 

An  executor  may  also  claim  by  election;  as  where  the  testator- 
at  the  time  of  his  death  was  entitled  out  of  several  chattels  to  take 
his  choice  of  one  or  more  to  his  own  use.  If  nothing  passes  to  the 
grantee  of  a  chattel  before  his  election,  it  ought  to  be  made  in  his 

nard.  327.     Ernes  v.  Hancock,  2  Atk.  Stu.  199. 

507.     Butler  v.   Duncomb,  1  P.  Wms.  (k)  Cowper  v.  Scott,  3  P.  Wms.  119. 

457.     Pitfield's  case,   2  P.  Wms.  513.  Wilson  v.  Spencer,  ib.  172.  2  P.  Wms. 

Ca.  Temp.  Talb.  117.     King'  v.  With-  612. -note  1.     Brewin  v.  Brewin,  Prec. 

ers,  3  P.  Wms.  414.     Sherman  v.  Col-  Ch.  195.    Warr  v.  Warr,  ib.  213.     Ld. 

lins,  3  Atk.  319.     Hutchins  v.  Fitzwa-  Teynham  v.  Webb,  2  Vez.209.    1  Bro. 

ter,  Com.  Rep.  716.     Hodgson  v.  Raw-  Ch.  Rep.  124.  in  note.     Lord  Hinchin- 

son,  1  Vez.  44.     Dawson  v.  Killet,   1  broke  v.  Sevmour,  ib.  395.  and  vid.  2 

Bro.  Ch.  Rep.  119.  124,  in  note.     Tun-  Atk.  133.  and  11  Yin.  Abr.  163,  164. 

stal  v.Bracken,  Amb.  167.     Embreyv.  Whitmore  v.  Wild,   1  Vern.  326,  347. 

Martin,  ib.  230.     Smith  v.  Partridge,  Cifibrd  v.   Goldsey,  2  Vern.  35.     Earl 

ib-  266.    Mannering  v.  Herbert,  ib.  575.  Rivers  v.  Earl  Derby,  ib.  72. 
Fawsey  v.  Edgar,   1  Bro.  Ch.  Rep.  in         (/)  11  Yin.  Abr.  163.     Bartholomew 

note.     Thomson  v.  Dowe,  ib.  193.  in  v.  Meredith,  1  Vern.  276. 
note.  (m)  Duke  of  Chandos  v.  Talbot,  2 

(i)  Watkins  v.  Cheek,    2  Sim.  and  P.  Wms.  613. 


(1)  See  12  Serg-.  &  Rawle,  114.  But  where  a  testator  directed  that  all  the 
rest  and  residue  of  his  estate,  "  of  what  kind  or  nature  soever,  whether  in  posses- 
sion, remainder  or  reversion,"  should  be  sold  by  his  executors  "at  any  time,  and 
in  any  manner  he  or  they  shall  think  proper,"  and  the  moneys  arising-  from  such 
sales  to  be  paid  to  particular  persons  (his  sons),  the  interest  of  the  legatees  was 
held  to  be  a  vested  one,  which  their  deaths  before  the  sale  did  not  defeat.  Taze- 
well y.  Smith's  adm.,  1  Uand.  Rep.  313. 


X74  of  the  executor's  interest.  cVc.      [book  II. 

lifetime  (n).  As  if  A.  give  to  B.  such  of  his  horses  as  B.  and  C. 
shall  choose,  the  election  ought  to  be  made  in  the  lifetime  of  B.  (o). 
But  where  an  interest  vests  immediately  by  the  grant,  the  election 
may  be  made  by  the  executor,  as  well  as  by  the  party  himself  (p). 
As,  if  a  fine  be  levied  of  a  hundred  acres,  and  the  conusee  grant 
fifty  to  the  conusor  for  a  term  of  years,  his  executor  may  choose 
which  fifty  he  will  have.  So  if  A.  gives  one  of  his  horses  to  B.  and 
C,  B.  may  elect  after  the  death  of  C,  which  he  will  take,  for  an 
[175]  interest  vested  in  them  immediately  by  the  gift  (q).  So  if 
the  election  determine  only  the  manner  or  degree  in  which  the 
thing  shall  be  taken,  the  executor,  as  well  as  the  grantee  himself, 
may  make  it;  for  in  such  case  also  there  is  an  immediate  inte- 
rest (r).  As,  if  a  lease  be  granted  to  A.  for  ten  or  twenty  years, 
as  he  shall  elect,  the  executor  is  entitled  to  the  election. 

(n)  Com.  Dig.  Election    B.     Harg.  (jo)  Harg.  Co.  Litt.  145. 

Co.  Litt.  145.  (?)  1  Roll.  Abr.  725. 

(o)  1  Roll.  Abr.  726.  (r)  Harg.  Co.  Litt.  144  b. 


(     176     ) 


chap.  iv. 

OF  CHATTEL  INTERESTS  WHICH  DO  NOT  VEST  IN  THE  EXECUTOR  OK 
ADMINISTRATOR. 


Sect.   I. 

Of  chattels  real  which  go  to  the  heir;  and  also  toudiing  money 
considered  as  land,  and  land  as  money. 

I  proceed  now  to  inquire  under  what  special  circumstance? 
chattel  interests  shall  go  to  the  heir  of  the  last  proprietor. 

The  principle  which  generally  pervades  the  cases  in  which  the 
heir,  as  distinguished  from  the  executor,  shall  be  entitled  to  chat- 
tels, is  this — that  they  are  so  annexed  to  and  consolidated  with  the 
inheritance,  that  they  shall  accompany  it  wherever  it  vests  (a). 

And,  first  in  regard  to  chattels  real:  if  A.  seised  in  fee  grant  an 
estate  tail,  or  a  lease  for  life  or  years,  reserving  rent,  such  rent  a? 
accrues  after  his  death,  being  incident  to  the  reversion,  shall  go  to 
his  heir,  and  not  to  his  executors  (Z»),  although  they  are  expressly 
named  in  the  covenant  (c). '  If  A.  seised  in  fee  make  a  lease,  re- 
[177]  serving  rent  to  him,  his  executors  and  assigns,  and  die,  the 
rent  is  determined,  for  the  executors  are  not  entitled  to  it,  inas- 
much as  they  are  strangers  to  the  reversion,  which  is  an  inherit- 
ance, nor  shall  it  go  to  the  heir,  because  he  is  not  named  (d).  But 
if  A.  seised  in  fee  make  a  lease  for  years,  reserving  rent  to  him  and 
his  assigns,  or  to  him,  his  executor  and  assigns,  during  the  term, 
although  there  be  decisions  to  the  contrary  (e),  the  words,  "  during 
the  term,"  shall  be  sufficient  to  carry  the  rent  to  the  heir.  Where 
the  rent  is  so  reserved,  the  intention  of  the  parties  is  clearly  ex- 
pressed, that  the  lessee  is  to  pay  the  same  during  .the  continuance 
of  the  demise  {/). 

In  case  the  lease  reserve  rent  at  Michaelmas,  or  ten  days  after;  it 
the  rent  be  not  paid  at  Michaelmas,  and,  before  the  ten  days  are  ex- 
pired, the  lessor  dies,  his  heir,  and  not  his  executor,  shall  receive 

(a)  2  HI.  Com.  427,  428.  (r)-  See  Noy.  96.     12  Co.  3fi.     Rich- 
ly) 3  Hac.  Ahr.  62.     H:ug\  Co.  Litt.  .   ruond     v.    Butcher,     Ceo.    Eliz.    217". 

47.  3  Bac.  Abr.  63.  in  note. 

(c)  Harg-.  Co.  LiU.  17.  note  9.  Drake  (/)  Harg\  Co.  Litt.  47.  note  8.  ibid. 
v.  Munday,  Cro.  Car.  207.  202'.     3  Bac.  Abr.   62.     Sacheverel  v. 

(d)  Harg.  Co.  Litt.  47.  2  Roll.  Abr.  Frog-ate,  2  Saund.  367.  S.  C.  1  Vent. 
450.  Sacheverel  v.  Frog-ate,  1  Ventr.  148,161.  Sacheverel  v.  Frogate,  Rftym. 
J61.  213.     2  Lev.  13.   S.  C.           # 


177  01    CHATTELS    REAL  [BOOK  II. 

the  rent:  lor  although  it  were  in  the  election  of  the  lessee  to  pay  it 
at  Michaelmas,  yet  the  ten  days  after  are  the  true  legal  term,  and 
consequently  the  rent  was  not  legally  due  before  that  period  of  time, 
and  therefore  is  no  chattel  (g).  So  if  the  lessor  die  on  the  day  on 
which  the  rent  is  payable,  after  sunset,  and  before  midnight,  the 
heir,  and  not  the  executor,  may  demand  the  rent,  for  it  is  not  in 
strictness  due  till  the  last  minute  of  the  natural  day,  although  it 
[178]  may  be  more  convenient  to  pay  it  before  (A).  So  where  rent 
is  granted  to  A.  and  his  heirs  for  life,  and  the  lives  of  B.  and  C,  the 
heir  shall  have  the  rent  as  a  party  specially  nominated,  and  as  heir 
by  descent  (i).  So,  although,  for  the  arrears  of  a  nomine poetise,  or 
penalty  from  non-payment  of  rent,  the  grantee  himself,  and  there- 
fore his  executors,  may  have  an  action  of  debt,  yet  such  penalty, 
as  an  incident  to  the  rent,  shall  descend  to  the  heir  (k).  So  a  term 
for  years  in  trust  to  pay  debts,  afterwards  to  attend  the  inheritance, 
shall  go  to  the  heir,  and  not  to  the  executor  (/).  So  if  a  term  be 
raised  for  a  certain  purpose,  and  that  purpose  be  answered,  the  heir 
shall  have  the  beneficial  interest  in  the  same,  whether  it  be  so  ex- 
pressed or  not  (m);  but  he  shall  take  it  as  a  term,  and  consequently 
as  a  chattel  (n).  So  an  annuity,  although  a  chattel  interest,  is  de- 
scendible to  the  heir  (o).  So  where  A.,  the  cestui/  que  trust  of  a 
term  in  Blackacre,  afterwards  purchased  the  fee  in  his  own  name, 
and  devised  Blackacre  in  fee  to  B.,  his  heir,  whom  he  made  his 
executor  and  residuary  legatee,  it  was  held  that  on  the  death  of  B. 
the  term  should  go  with  the  fee  to  B.'s  heir,  and  not  to  his  per- 
[179]  sonal  representative  (/;).  So  if  an  estate  pur  auler  vie  be 
limited  to  A.,  his  heirs,  executors,  administrators,  and  assigns, 
and  be  not  devised,  it  shall  descend  to  the  heir  as  a  special  oc- 
cupant (q). 

But  if  a  debt  be  owing  to  A.,  and,  in  satisfaction  of  it,  the  debtor 
grants  him  an  annuity,  charged  on  lands  for  the  grantor's  own  life, 
and  redeemable,  such  annuity  shall  be  part  of'A.'s  personal  es- 
tate (r).  So  a  term  conveyed  as  a  fee  by  lease  and  release  to  J.  S. 
and  his  heirs  by  the  word  "  grant,"  although  it  cannot  operate  as 
a  fee  to  vest  in  the  heirs  of  J.  S.,  yet  shall  go  to  his  personal  re- 
ts-) 3  Bac.  Abr.  63.     10  Co.  127.  Vent.  359. 

(A)  3  Bac.  Abr.  63.  Harg.  Co.  Litt.  (»)  11  Vin.  Abr!  171.  Levetv.  Need- 
202.  note  1.     Duppa  v.  Mayo,  1  Saund.     ham,  2  Vern.  139. 

287.  Ld.  Rockingham  v.  OSenden,  (o)  11  Vin.  Abr.  153.  Arg.  10.  Mod. 
Salk.  578.  and  vid.  1  P.  Wms.  177.  S.  C.     237.     Vide  also  11  Vin.  Abr.  146.  pi. 

(?)  11  Yin.  Abr.  168.  Bowles  v.  25.  Co.  Litt.  374  b.  Earl  Stafford  v. 
Poore,  Cro.  Jac.  282.  Vid.  2  Bl.  Com.  Buckley,  2  Vez.  170.  Countess  of  Hol- 
259.  derness  v.  Marq.  of  Carmarthen,   1  Bro. 

(k)  11    Vin.   Abr.   168.      Harg.  Co.     C.  Rep.  377.     2  Bl.  Com.  40. 
Litt.  162  b.  (p)   Goodright  v.  Saks,  2  Wils.  329. 

(/)  11  Vin.  Abr.  172.     Countess  of    vid.  supr.  7. 
Bristol  v.  Nungerford,    2  Vern.     645.  (7)    Atkinson    Admx.    v.  Baker,    4 

Com.  Dig.  Biens.  B.   2  Ca.  Ch.    v.     Term  Rep.  229.     Vid.  supr.  140. 

Langton,  156, 160.  (;•)  Com.  Dig.  Biens.   C.    Longuet  V. 

(wj)    11   Vin.   Abr.   169.      Anon.    2-    Scawen,  1  Vez.  402. 


CHAP.   IV.]  WHICH  GO  TO  THE   HEIR.  179 

preservative  (s).  So  if  a  lessee  for  twenty  years  make  a  lease  for 
ten  years,  reserving  a  rent  during  the  last-mentioned  term  to  him 
and  his  heirs,  it  shall  he  void  as  to  his  heir,  and  shall  belong  to  his 
executors  (/).  So  if  A.  possessed  of  a  term  for  years  devise  it 
to  B,  for  life,  remainder  to  the  heirs  of  B.,  it  seems  that  on 
B.'s  death  it  shall  go  to  his  executor,  and  not  to  his  heir  (it).  So 
if  A.  seised  in  fee  make  a  lease  for  years,  reserving  rent,  and  devise 
the  rent  to  B.;  B.'s  executor,  and  not  his  heir,  shall  he  entitled  to 
the  rent,  because  B.  had  no  more  than  a  chattel  interest  (v).  So 
[ISO]  where  a  copyhold  estate  was  granted  to  A.  for  the  lives  of 
A.  B.  and  C,  and  A.  died  intestate,  it  was  held  that  hisadminis-, 
trator  should  have  the  estate  during  the  lives  of  B.  and  C.  (w). 

So  a  lease  granted  by  a  copyholder  for  one  year  only  shall  be  no 
forfeiture,  for  it  is  warranted  by  the  general  custom  of  the  realm, 
and  shall  be  accounted  assets  in  the  hands  of  the  executor  of  the 
lessee  (x). 

If  A.  grant  a  rent  in  fee  to  J.  S.,  with  a  proviso  that,  if  it  be  in 
arrear,  the  grantee  may  enter  the  lands,  and  retain  till  he  be  satis- 
fied; the  power  of  entry  is  an  inheritance,  and  descends  to  the  heir: 
but  wheji  entry  is  made,  the  party  has  merely  a  chattel  interest 
in  the  -lands,  which,  with  the  arrears,  shall  go  to  his  execu- 
tor (y). 

If  the  grantee  of  a  rent  in  fee  take  a  lease  for  years  of  the  lands 
out  of  which  the  rent  issues,  and  die,  his  executor  shall  have  the 
land,  and  the  heir  is  precluded  from  the  rent  (z). 

So,  a  bond  given  by  one  parcener  to  pay  the  other,  her  execu- 
tors or  administrators,  an  annual  sum  during  the  life  of  J.  S.  for 
[1S1]  owelty  of  partition,  or  as  a  compensation  for  her  share  being 
of  the  less  value,  shall  go  to  the  executor,  and  not  to  the  heir:  be- 
cause in  such  case  there  is  no  grant  of  a  rent,  but  a  mere  contract, 
and  therefore  the  obligor  had  an  election,  either  to  pay  the  same, 
or  to  forfeit  her  bond  (a). 

Money  covenanted  to  be  laid  out  in  land,  we  have  seen  (b), 
shall  descend  to  the  heir.  Nor  is  the  case  varied  by  the  covenants 
being  voluntary;  as,  if  A.  without  any  consideration  covenant  to 
lay  out  money  in  a  purchase  of  land  to  be  settled  on  him  and  his 
heirs,  a  court  of  equity  will  compel  the  execution  of  such  contract, 
though  merely  voluntary;  for  in  all  cases  where  it  is  a  measuring 
cast  between  an  executor  and  an  heir,  the  latter  shall  in  equity  have 
the  preference  (c).     But  in  such  cases,   if  there  be   proof  that  the 

(a)  11  Vin.  Abr.    153.     Marshall  v.  Harg.  Co.  Lift.  59.  note  4.     4  Co.  26. 

Frank,  Chan.  Free.  480.  9  Co.  75  b.  Matthewes  v.  Weston,  W. 

(/)  Sacheverel  v.    Frogate,   1  Vent.  Jo.  249.  Litt.  Rep.  233. 

161.  (y)  11  Vin.  Abr.   147.     Jemmot  v. 

(u)  11  Vin.  Abr.  155.  Davis  v.  Gibbs,  Cooly,  1  Lev.  171.  Errington  v.  Hirst, 

3  F.  Wms.  29.  Raym.  125.  158.    1  Sid.  223.  262.  344. 

0)    11   Vin.  Abr.  145.     Dyer  5  b.  (z)  11  Vin.  Abr.  147.    Lit.  Rep.  59. 

note   1.  ibid.      Ards  v.  Watkin,    Cro.  («)   11   Vin.   Abr.    150.     Hulbert  v. 

Eliz.  637.  651.  Moore,  549.  S.  C  Hart,   1  Vera.  133. 

(it>)  11  Vin.  Abr.  151.  in  note.  Howe  (6)  Supr. '8. 

v.  Howe,  1  Vern.  415.  (c)  Edwards   v.    Countess    of   War- 

O)  11  Vin.  Abr.    146.     Poph.  188.  wick,  2  V.  Wms.    176. 


181  OP  CHATTELS  REAL  [BOOK  II. 

party  absolutely,  and  in  all  events  entitled  to  the  money,  intended 
to  give  it  the  quality  of  a  personal  estate,  then  it  shall  go  to  his  ex- 
ecutor. Whether  the  mere  circumstance  of  the  fund  remaining  in 
his  hands  in  the  shape  of  money  shall  of  itself  be  evidence  of  such 
intention,  and  if  not,  whether  the  heir  has  any  equity  against  the 
personal  representative  in  this  respect,  are  points  in  which  the 
cases  seem  in  some  measure  to  differ.  But  they  all  agree  that 
even  slender  proof  of  the  intention  will  decide  the  question  (d). 

Thus,  by  articles  before  marriage,  securities  for  moneys  amount- 
ing to  the  sum  of  1,400/.  were  assigned  to  trustees,  and  agreed  to 
be  invested  in  land  to  be  settled  on  the  husband  for  life,  remainder 
to  the  wife  for  life,  remainder  to  the  issue  of  the  marriage,  remain- 
der to  the  right  heirs  of  the  husband,  some  of  the  securities  were 
continued  unaltered,  but  part  of  the  money  settled  was  invested  on 
other  securities  expressly  in  trust  for  the  husband,  his  executors 
and  administrators.  The  husband  died  without  issue,  having  made 
his  will,  by  which  he  devised  some  of  his  lands  to  his  wife,  and 
the  rest  of  his  real  estate  in  Yorkshire  and  elsewhere  to  J.  S.,  and 
all  his  personal  estate  and  all  his  securities  for  money  to  his  wife, 
whom  he  appointed  executrix.  It  was  held  that  so  much,  of  the 
1,400/.  as  was  subsisting  upon  the  securities  on  which  it  was*origi- 
nally  placed,  or  on  any  other  securities  where  no  new  trust  had 
been  declared,  ought  to  be  considered  as  real  estate;  but  that  such 
part  as  was  called  in  by  the  testator,  and  afterwards  placed  out  upon 
securities  upon  a  different  trust,  should  betaken  to  be  personal  estate; 
upon  the  principle,  that  as  there  was  no  issue  of  the  marriage,  it 
was  in  the  power  of  the  husband  to  alter  and  dispose  of  the  settled 
property  as  against  the  heir  at  law,  though  not  against  the  wife,  and 
vet  the  placing  it  out  upon  different  trusts  was  an  alteration  of  the 
nature  of  it,  and  his  declaring  the  trust  to  his  executors  seemed 
equivalent  to  his  declaring  that  it  should  not  go  to  his  heir  (e). 

But  where  A.  executed  articlesofagreementforthepurchase  of  land 
of  B.  and  paid  B.  six  hundred  pounds;  but  B.  paid  A.  interest  for  the 
money,  and  A.  paid  B.  rent  for  the  premises,  it  was  held,  that  on  A.'s 
dying  before  the  conveyance,  his  executor  was  entitled  to  the  six 
[1S2]  hundred  pounds,  as  part  of  his  personal  estate  (/)•  On  the 
other  hand,  where  A.  died  intestate,  leaving  two  daughters,  and 
after  his  decease  the  widow  laid  out  the  sum  of  four  hundred 
pounds,  part  of  his  assets,  in  land,  and  settled  it  to  herself  for  life, 
remainder  to  her  two  daughters  in  tail,  remainder  to  her  own  right 
heirs:  the  administrators  of  the  daughters  claimed  from  the  heir  at 
law  of  the  widow  two-thirds  as  personal  estate,  and  it  was  proved 

{<!)  Edwards    v.    Countess  of  War-  C.  269.    Bradish  v.   Gee,    AmbL   229. 

wick,    2  1'.    Wins.    175.    and  note    1.  Hewitt  v.  Wright,  1  Bro.  Ch.  Rep.  86. 

Chichester  v.  BickerstafF,   2  Vern.  295.  Pulknev  v.  Earl  Darling-ton,   223. 
Ling-en  v.    Sowray,    1   P.    Wms.    172.  (e)  Ling-en   v.  Sowray,     1   P.  Wins. 

1  echmere    v.     Earl    of    Carlisle,    3   P.  172. 

Wms.  211.  S.  C.  Ca.  Temp.   Talb.  80.  (/)   11  Yin.  Abr.  1  19.  2  Chan.  Rep 

Guidot     v.    Uuidot,     .5    Ark.     254.    Lb.  138. 
Crablree   y\  Br.mulc,  680.      5  Bro.   1'. 


CHAP.    IV.]  WHICH  GO  TO  THE  HBIR.  182 

that  the  same  four  hundred  pounds  were  applied  in  the, purchase: 
although  the  Master  of  the  Rolls  decreed  for  'the  administrators, 
yet  on  appeal  the  Lord  Keeper  reversed  the  decree  on  the  ground, 
that  money  could  not  he  specifically  distinguished,  nor  followed 
when  invested  in  a  purchase  (g).  But  where  an  executor  in  trust 
for  an  infant  of  a  lease  for  ninety-nine  years  determinable  on  three 
lives,  on  the  lord's  refusal  to  renew  but  for  lives  absolutely,  com- 
plied with  his  requisition,  and  changed  the  years  into  lives;  on  the 
infant's  dying  under  twenty-one,  this  was  held  to  be  a  trust  for  his 
administrator,  and  not  for  his  heir  (h).  So  where  trustees  pur- 
chased lands  in  fee-simple  with  the  infant's  money,  and  the  infant 
died  in  his  minority,  it  was  held  that  the  land  should  be  accounted 
part  of  the  personal  estate,  and  should  go  to  his  administrator  (i). 
So,  where  committees  of  a  lunatic  invested  part  of  his  personal  es- 
[1S3]  tate  in  the  purchase  of  lands  in  fee,-  the  court  declared  it 
should  be  deemed  personal  property,  decreed  an  account,  the  land 
to  be  sold,  and  the  money  to  be  divided  among  the  next  of  kin. 
For  it  shall  not  be  in  the  power  of  a  guardian  or  trustee  to  change 
the  nature  of  the  estate.  (1)  But  it  appears,  that  if  in  such  case  the 
trustees  obtain  a  decree  in  equity  for  the  purchase,  the  court  will 
maintain  its  decree,  and  then  the  estate  shall  go  to  the  heir,  and  not 
return  to  the  personal  fund,  if  there  benoground  to  impeach  the  trus- 
tees of  fraud  (k). 

With  respect  to  mortgages,  since  courts  of  equity  consider  such 
contracts  as  merely  personal,  the  mortgage  money  is  in  general 
held  to  be  part  of  the  personal  estate,  and  to  belong  to  the  executor 
of  the  mortgagee.  But,  under  special  circumstances,  it  shall  be 
regarded  in  the  light  of  real  property,  and  shall  go  to  the  heir  (/). 

At  law,  if  the  condition  or  defeasance  of  a  mortgage  of  inherit- 
ance make  no  mention  either  of  heirs  or  executors,  to  whom  the 
money  shall  be  paid,  the  money  ought  to  go  to  the  executors, 
for,  being  originally  derived  out  of  the  personal  estate,  in  natu- 
ral justice,  it  ought  to  return  thither.  If  the  defeasance  ap- 
point the  money  to  be  paid  either  to  the  heir  or  executors, 
and  the  mortgagor  pay  the  money  at  or  before  the  day,  he  may 
[184]  elect  to  pay  it  either  to  the  heir  or  the  executor.  If  the  day  of 

(g)  11  Vin.  Abr.  153.     Kendar  v.  (k)    11    Vin.    Abr.   51.     Awdley  v. 

Milward,  2  Vern.  440.  Awdley,   2  Vern.  192.  Thomas  v.   Ke- 

(h)  11   Vin.    Abr.    155.     Witter    v.  mish,  2  Freem.  209.     Earl  of  Winchel- 

Witter,  3  P.  Wms.  99.  sea  v.  Norcliffe,  1  Vern.  435. 

(?)   U:Vin.  Abr.  151.    2  Chan.  Rep.  (/)  Powell    on   Mortgages,    2d    voj. 

377.  682—698.    • 


(1)  If  the  guardian  of  a  minor  child  of  an  intestate  accept  for  his  ward  a  pur- 
part of  the  real  estate  of  the  intestate,  adjudged  to  the  minor  by  the  Orphan's 
Court  under  proceedings  in  partition,  had  pursuant  to  the  provisions  of  the  Act 
of  19th  April,  1794,  sect.  22.  (Pord.  Dig.  378.)  and  enter  into  recognizances  for 
the  payment  of  the  shares  of  the  other  children,  the  ward  is  bound  by  the  act  of 
the  guardian,  and  cannot,  on  arriving  at  full  age,  disaffirm  it.  Case  of  Gelback  s 
Appeal,  8  Serg.  &  Rawle,  205. 

16 


184  >l'  CHATTELS   REAL  [BOOK  I!. 

payment,  be  past,  and  the  mortgage  be  forfeited,  all  election  is 
gone;  for  at  law  there  exists  no  right  of  redemption.  There  can 
be  a  redemption  only  in  equity,  and  equity  will  not  revive  the 
election;  but  considers  the  case  the  same  as  if  neither  heir  nor  ex- 
ecutor had  been  named.  And  as  in  that  case  the  law  will  give  it 
to  the  executor;  equity,  which  ought  to  follow  the  law,  will  de- 
cree it  to  the  same  person.  Hence,  therefore,  when  the  security 
descends  to  the  heir  of  the  mortgagee  attended  with  an  equity  of 
redemption,  as  soon  as  the  mortgagor  pays  the  money,  the  land 
shall  "belong  to  him,  and  the  money  only  to  the  mortgagee,  which 
is  merely  personal,  and  so  accrues,  and  is  payable  to  his  execu- 
tor (?/*).  Nor  will  it  appear  inequitable  that  the  heir  should  be 
decreed  to  make  a  reconveyance  without  having  the  money  which 
comes  in  lieu  of  the  land,  if  it  be  considered  that  the  land  was  no 
more  than  a  security,  and  that,  after  payment  of  the  money,  a 
trust  results  for  the  mortgagor,  which  the  heir  of  the  mortgagee  is 
bound  to  execute. 

Nor  is  it  material  that  the  executor  of  the  mortgagee  has  assets 
without  such  money.     Assets  shajl  not  be  the  measure  of  justice 
between  the  parties.     The  heir  either  ought  to  have  the  money  if 
there  were  no  assets,  or  ought  not  to  have  it  although  there  were. 
Nor  is  the  principle  varied  by  there  being  no  personal  covenant  on 
[185]  the  part  of  the  mortgagor  to  pay  the  money  :  for  although 
the  claim  of  the  mortgagee's  executor  would  be  strengthened  by 
such  a  covenant,  yet  it  shall  avail   him  without  it  (n).     And  al- 
though a  mortgage  in  fee  be  conditioned  that  the  mortgagor  shall 
pay  the  money  to  the  mortgagee,  his  heirs,  executors,  administra- 
tors, or  assigns,  and  the  mortgagee  die  before  the  forfeiture  of  the 
mortgage,  whereby  the  mortgagor  has  his  election  at  law  to  pay 
the  money  to  either,  yet  in  equity  it  shall  belong  to  the  executor  ; 
for,  in  mortgages  in  fee,  the  mortgagee's  heirs  are  trustees  for  his 
personal  representatives  (o).     In  short,  mortgages  are  deemed  in 
equity  to  be  mere  chattel  interests,  and  to    belong  to  the  executor 
of  the  mortgagee,  unless  his  intention  to  the  contrary  be  declared 
in  express  terms  by  the  contract  (p),  or  by  his  will,  or  be  evident- 
ly implied  by  his  conduct :  As,  if   he  foreclose,   or  procure  a  re- 
lease of  the  equity  of  redemption,  and  obtain  actual  possession  of 
the  premises.      So,  where  a  mortgage  in  fee  descended  on  the  heir 
at  law  of  the   mortgagee,  and   the   personal  representative  of  the 
mortgagee  ten   years  after  the  money  had  been  paid  to  such  heir, 
filed   a  bill  for  the   same,  it  was  decreed  to  him,  but  without  in- 
terest (q). 

Nor  shall  a  legacy  to' the  executor,  although  expressed  to  be  pay- 

(m)  Waring'  v.  Danvers,    1  P.  "VVms.  Ventr.  351.     Barnard.  50.     Rightson  v. 

295.     See  also  Fonbl.  255.  Overton,  2  Freem.  20.     Harg.  Co.  Litt. 

(n)  11  Vin.  Abr.  148.   and  in  note.  208  b.  note  1. 
Baker  v.  Baker,   2  Freem.  143.     See         (p)  Off.  Ex.  Suppl.  47.     Harg.  Co. 

also  2  P.  Wms.  455.  Litt.  210. 

(o)    Sir  Thomas  Littleton's  case,    2         (r/)  Turner's  case,  2  Ventr.  348. 


CHAP.  IV.]  WHICH  GO  TO  THE  IIEIR.  185 

able  after  debts,  and  the  other  legacies,  affect  his  title  to  money 
[186]  due  to  the  testator  on  mortgage.  Thus  where  a  mortgage 
in  fee,  after  bequeathing  several  legacies,  gave  one  hundred  pounds 
to  his  executor,  with  a  direction  that  his  legacy  should  not  be  paid 
till  the  testator's  debts  and  other  legacies  were  discharged,  and 
there  was  no  deficiency  of  assets,  yet  the  court  decreed,  in  favour 
of  the  executor  against  the  heir  (p).  So,  if  the  mortgagor  shall 
fail  to  redeem,  the  heir  of  the  mortgagee  shall  convey  the  land  to 
the  executor :  As  where  the  mortgage  was  forfeited,  though  the 
heir  of  the  mortgagee  were  in  possession  by  descent,  and  there 
were  no-  deficiency  of  assets,  on  the  mortgagor's  not  offering  to 
redeem,  the  heir  of  the  mortgagee  was  decreed  to  make  such  con- 
veyance :  for  since  the  money,  as  part  of  the  personal  estate,  would 
have  gone  to  the  executor,  he  was  held  entitled  to  the  land  as  a 
recompence  (g).  So,  where  a  copyhold  was  mortgaged  by  sur- 
render to  A.,  who  was  admitted  tenant,  and  died,  leaving  B.  his 
son,  and  heir,  and  executor  :  B.  entered,  and  was  also  admit- 
ted, and  afterwards  by  his  will,  but  without  any  surrender  to 
the  use  of  the  same,  devised  it  to  C. :  on  B.'s  death,  C.  became 
the  personal  representative  of  A.,  and  exhibited  his  bill  against 
D.,  who  was  heir  at  law  of  A.'  and  B. ,  and  who  claimed  this  as 
a  real  estate  on  a  variety  of  grounds  :  that  the  forfeiture  had  been 
so  long  incurred  ;  that  two  descents  had  been  cast;  that  more  was 
due  on  the  estate  than  its  value  ;  that  the  mortgagor  had  by  his 
[1S7]  answer  refused  to  redeem  ;  and  submitted  to  be  foreclosed  ; 
and  that  the  devise  by  B.  to  the  plaintiff  was  void  at  law  for  want 
of  a  surrender  to  the  use  of  the  will  :  Yet  it  was  decreed  to  C, 
as  the  personal  representative  of  A.,  inasmuch  as  there  wag  no 
foreclosure,  nor  release  of  the  equity  of  redemption  in  the  life- 
time of  the  mortgagee,  and  on  appeal  the  decree  was  affirmed  (r). 
If  on  a  mortgage  being  forfeited,  the  mortgagor  release  to  the 
heir  of  the  mortgagee  in  fee,  3'et  the  executor  of  the  mortgagee 
shall  have  the  benefit  of  the  estate,  although  there  be  no  debts. 
So,  in  the  case  of  a  foreclosure  of  a  mortgage,  or  that  the  mortgage 
be  of  so  ancient  a  date,  as  in  the  ordinary  course  of  the  court  it 
is  not  redeemable,  it  shall  belong  to  the  personal  representative  of 
the  mortgagee  ;  for  unless  the  mortgagee  were  actually  in  posses- 
sion, it  shall  be  considered  as  personal  estate  (s).  So,  where  a  wife 
had  a  mortgage  in  fee  of  a  copyhold,  and  died  leaving  issue,  and 
the  issue  was  admitted,  and  died,  and  then  the  husband,  as  admin- 
istrator to  his  wife,  claimed  the  copyhold  as  a  mortgage,  and  con- 
sequently part  of  the  wife's  personal  estate;  it  was  decreed  to  him 
against  the  heir  at  law,  although  the  latter  had  been  admitted  (t). 
So,  a  mortgage  of  an  inheritance  to  a  citizen  of  London  hath  been 

(/))  Canning  v.  Hicks,  2   Ca.  Cha.  367.     1  Eq.  Ca.  Abr.  273.  328.    Vid. 

187.     S.  C.  1  Vern.  412.  Awdley  v.  Awdlev,  2  Vern.  193. 

(7)  Ellis  y-  Guavas,  2  Chan.  Ca.  50.  0)  Awdley  v,  Awdley,  2  Vern.   193. 

Canning  v.  Hicks,  187.  (7)  Turner  v.  Crane,  1  Vern.  170, 

(r)  Tredway  v.  fotherley,  2  Vern. 


188  OF  CHATTELS  HEAL  TbOOK  II. 

held  to  be  part  of  his  personal  estate,  and  divisible  according  to 
the  custom  (u). 

[188]  But  if  the  possessor  of  the  estate  conceive  himself  to  hold 
it  in  fee,  his  interest  will  not  be  considered  as  personal  against  his 
evident  intention  ;  as  if  an  absolute  sale  of  an  estate  in  mortgage 
be  fraudulently  made  by  the  mortgagee  to  a  third  person,  the  pur- 
chase money,  on  its  being  refunded  by  the  vendor  after  the  death 
of  the  vendee,  will  go  to  his  heir;  for  the  intention  of  the  vendee 
was  to  alter  the  nature  of  his  property,  and  to  invest  the  money 
in  the  purchase  of  land,  and  therefore  the  court  will  consider  it  as 
real  property  (x).  So,  if  it  appear  to  be  the  intention  of  the  mort- 
gagee that  the  Mortgage  should  pass  by  devise  as  a  real  estate,  the 
executor  will  not  be  entitled  (y).  As,  where  the  testator  had  se- 
veral mortgages,  and  among  the  rest  a  mortgage  in  fee  of  lands  in 
Whiteacre,  and  devised  his  mortgages  to  his  two  daughters,  their 
executors  and  administrators,  and  his  lands  in  Whiteacre,  on  which 
he  had  entered  on  forfeiture  of  the  mortgage,  to  them  and  their 
heirs  :  M.,  one  of  the  daughters,  died  without  issue  ;  H.,  her 
husband  and  administrator,  claimed  a  moiety  of  the  lands  in  White- 
acre as  a  mortgage  not  foreclosed,  nor  of  which  the  equity  of  re- 
demption was  released,  and  therefore  part  of  his  wife's  personal 
estate.;  but  it  was  held,  that  although  it  were  a  mortgage,  as  be- 
tween a  mortgagor  and  mortgagee,  and  therefore  personalty  ;  yet 
the  testator's  intention  was,  that  it  should  pass  to  his  daughters  as 
a  real  estate  to  them  and  their  heirs,  and  that  inasmuch  as  M.  was 
dead  without  issue,  it  descended  to  her.  sisters  as  her  heirs  at  law, 
[189]  and  that  II.  was  entitled  to  no  part  of  the  same  in  the  na- 
ture, of  personal  estate  (z).  But  where  a  mortgage  was  devised 
as  real  estate  after  a  decree  of  foreclosure  nisi,  that  is,  unless  cause 
were  sbewn  to  the  contrary,  it  was  held  to  be  personal  estate  for- 
payment  of  debts,  if  the  assets  were  insufficient,  although  consid- 
dered  as  real  estate  between  the  devisor  and  devisee  [a).  A  mort- 
gage will  not  pass  as  land  under  ageneral  description  applicable  to 
it  in  point  of  locality,  if  from  other  circumstances  it  be  evident 
that  the  owner  regarded  it  as  personal  property  (b). 

Where  money  secured  by  mortgage,  to  which  the  executor  was 
entitled  at  law,  was  articled  to  be  laid  out  in  land,  and  settled  on 
the  issue  of  the  marriage,  on  special  verdict  it  was  adjudged  to  be 
bound  by  the  article's  (c).  And  it  has  been  held,  that  the  heir  of 
a  mortgagee  in  fee,  if  he  pay  the  executor  the  mortgage  money, 
may  take  the  benefit  of  a  foreclosure  to  himself  (fl?). 

If  the  parson  of  a  church  be  seised  of  the  advowson  in  fee,  and 
die,  in  such  case  the  heir,  and  not  the  executor,  shall  present;  be- 

(m)  Thornborough  v.  Baker,  1  Chan.         (a)  Garret  v.   Evers,   Moseley,  364. 

Ca.  285.     "Winn  v.  Littleton,  1  Vern.  4.  and  see  Pilberschildt  v.  Sehiott.'o  Ves. 

(x)  Cotton  v.  lies,  1  Vern.  271.  and  Bea.  46. 

(y)  Martin  v.  Mowlin,  2  Burr.  969.  (b)  Martin  v.   Movvlin,   2  Burr.  969. 

(z)  Noys  v.  Mordant,  2  Vern.  581.  (c)  Vid.Lechmere  v.  Earl  of  Carlisle, 

S.  C.  Gilb.  Rep.  in  Chan.  2.   S.  C.  Chan,  3  P.  Wms.  217. 
Free.  265.  (r/)  Clarkson  v.  Bovver,  2  Vern.  67. 


CHAP.   IV. J  WHICH  GO  TO  THE  HEIR.  189 

cause  at  the  same  time  the  avoidance  rests  in  the  executor,  the  in- 
heritance descends  to  the  heir;  and  where  two  titles  concur  in  an 
[190]  instant  of  time,  the  elder  shall  be  preferred  (e).  But  if  A. 
be  seised  of  an  advowson  in  gross,  or  in  fee  appendant  to  a  manor, 
and  an  avoidance  happen  in  his  lifetime,  "his  executor,  and  not  his 
*heir,  shall  present,  inasmuch  as  it  was  a  chattel  vested,  and  severed 
from  the  manor  (/).  But  if  the  next  presentation  be  granted  to 
A.,  his  heirs  and  assigns,  it  is  clearly  a  mere  chattel,  notwithstand- 
ing the  word  "heirs  :"  It  is  but  one  turn,  and  where  the  thing  is 
a  chattel,  the  word  «<  heirs"  cannot  make  it  an  inheritance  (g). 
So  if  a  man  grant  the  two  next  presentations  of  a  church,  they  are 
chattels,  and  if  the  grantee  die  the  executor  shall  have  them,  and 
not  the  heir  (h). 

If  a  party  having  the  inheritance  of  tithes  die  after  the  tithes 
are  set  out,  they  shall  go  to  his  executor,  and  not  to  his  heir  (?'). 

The  interest  denominated  the  year,  day,  and  waste,  which  has 
been  already  explained  {k),  is  but  a  chattel-,  and  although  granted 
by  the  crown  to  A.,  and  his  heirs,  shall  go  to  his  executors  (/). 

In  regard  to  the  estate  of  a  lunatic,  the  Court  of  Chancery  will 
change  the  na*ture  of  the  property  so  as  to  alter  the  succession,  if 
[191]  the  interest  of  the  owner,  which  is  solely  considered,  shall 
require  it.  Between  the  real  and  personal  representatives  of  a  lu- 
natic there  is  no  equity.  They  are  both  volunteers,  and  must  take 
what  they  find  at  his  death  in  the  condition  in  which  they  find  it. 
Thus  the  produce  of  timber  on  a  lunatic's  estate,  cut  and  sold  by 
an  order  of  the  court,  founded  on  the  master's  report  that  it  would 
be  for  the  benefit  of -a  lunatic,  as  some  of  the  timber  was  in  a  state 
of  decay,  and  injuring  the  rest,  was  on  his  death  held  to  be  person- 
al assets,  and  incapable  of  a  transmutation  for  the  benefit  of  the 
heir  (in). 

Charters  and  deeds,  court  rolls,  and  other  evidences  of  the  land, 
as  well  as  the  chests  in  which  they  are  usually  kept,  shall  pass 
with  the  land  to  the  heir,  and  shall  not  go  to  the  executor  (n).  So, 
where  a  bill  was  filed  in  chancery  for  an  antique  horn,  with  an 
ancient  inscription,  on  the  ground  that  it  had  immemorially  gone 
with  the  plaintiff's  estate,  and  been  delivered  to  his  ancestors  by 
which  to  hold  the  land,  the  court  was  of  opinion,  that  if  the  land 
were  of  the  tenure  called  cornage,  the  heir  had  a  title  to  this  mon- 
ument of  antiquity  at  law  (o).  So,  if  land  be  sold  by  A.  on  con- 
dition, that  if  the  purchase  money  be  not  paid  by  a  limited  day, 

(e)  11  Vin.  AJbr.  169.  3  Bac.  Abr.  61.  (k)  Vid.  supr.  144. 

Holt  v.  Bishop  of  Winchester,   3  Lev.  (/)  11  Vin.  Abr.  175.     Off".  Ex.  51. 

47.     3  Salk.  280.  S.  C.  .  (»'■)  Oxenden  v.  Lord  Compton,    2 

(/)  11  Vin.  Abr.  145.     Fitz.  N.  B.  Ves.  jun.  69.  75.  note  b.     4  Bro.  Ch. 

33.  Bep.    231,  397-      S.  C.    vid.   ex  parte 

(g)   11  Vin.  Abr.  173.     Br.  Chattels,  Marchioness  of  Annandale,  Ambl.  81. 

pi.  6.  (n)  Off.  Ex.  63.    3  Bac.  Abr.  65.    L- 

(h)  11  Vin.  Abr.  173.     Br.  Chattels,  of  Test.  381.     Vid.  Atkinson  admx.  v. 

pi.  20.  Baker,'  4  Term  Bep.  229. 

(i)  Com.  Dig;  Biens,  A.  2.     Off.  Ex,  (a)  Bar.  Abr.  65.     Pusey  v.  Pusey, 

60.     3  Bac.  Abr.  64.  1  Vern.  273.     IIarg\  Co.  Lilt.  107. 


191  Or  CHATTELS  PERSONAL  [BOOK  II. 

then  that  he  shall  re-enter  ;  and  A.  die  ;  here,  although  there  be 
[192]  a  debt  due  to  the  executor,  and  no  land  descended  to  the 
heir  of  A.  yet  the  heir  shall  have  the  deeds,  inasmuch  as  upon 
him  the  condition  descended  (p).  But  if  A.  deliver  a  charter  to 
13.  to  redeliver  to  him,  and  his  heirs,  having  no  title  to  the  land,, 
his  executor,  and  not  his  heir,  shall  have  this  charter,  because  it 
was  only  a  chattel  without  the  land  (q). 

So,  if  the  writings  of  an  estate  are  pawned  or  pledged  for  mo- 
ney lent,  they  are  considered  as  chattels  in  #the  hands  of  the  cre- 
ditor, and  in  case  of  his  decease,  they  will  go  to  his  personal  repre- 
sentative, as  the  party  entitled  to  the  benefit  accruing  from  the 
loan  (r). 


Sect.  II. 

Of  chattels  personal  which  go  to  the  heir  :  and  herein  of  heir- 
looms. 

With  respect  to  chattels  personal,  and  animate, •the  heir  has  a 
qualified  possessory  property  in  deer  in  a  park,  hares  or  rabbits  in 
a  warren,  doves  in  a  dove-house,  pheasants  and  partridges  in  a 
[193]  mew,  swans,  though  unmarked,  in  a  private  moat  or  pond, 
'  or  kept  in  water  within  a  manor,  or  at  large,  if  marked,  and  in 
bees  in  a  hive,  or  as  it  has  been  held  by  some  authorities,  though 
not  in  a  hive,  ratione  soli,  in  respect  of  his  ownership  in  the  soil. 
He  is,  also,  entitled  to  fish  in  a  private  pond  or  piscary.  These  va- 
rious animals  shall  all  go  with  the  inheritance,  for  without  them  it 
is  incomplete  (a).  And  such,  we  may  remember,  is  the  property 
that  shall  vest  in  the  executor,  if  the  testator  had  a  lease  for  years 
in  the  land  (5). 

With  regard  to  chattels  personal,  and  vegetable,  not  only  timber 
trees,  as  oak,  beech,  chesnut,  walnut,  ash,  elm,  cedar,  fir,  asp, 
lime,  sycamore,  birch,  poplar,  alder,  larch,  maple,  and  horn-beam, 
but  also  trees  of  every  other  description  belonging  to  the  soil,  and 
unless  severed  during  the  life  of  the  ancestors,  are  the  property  of 
the  heir  (c).  So,  likewise,  are  all  species  of  fruits,  if  hanging  on  the 
treeatthe  time  of  his  ancestor's  death.  Grass,  also  growing,  though 
ready  to  be  mown  for  hay,  shall  descend  with  the  land  to  the  heir; 
for  these  are  either  natural,  or  permanent  profits  of  the  earth  (</). 
He  is  also  entitled  to  such  hedges  and  bushes  as  are  standing  at  thai 
time  (e).  . 

(p)  Off.  Ex.  63.  Bl.  Com.  427. 

(y)  11  Virt.Abr.  145.  Eitzh.  Detinue.  (i)  Harg.  Co.  Litt.  8.  note  10.     A  id. 

pi.  7.  supr.  141,  118. 

0)  3  Bac.  Abr.  65.     Nov.  Max.  50.  (c)  Com.  Dig.  Biens,  II.  3  Bad  kbr. 

(//)  Harg.  Co.  Litt.    8.  "  Com.   Dig.  64.     Off,  Ex.  59.      Swmb.  934,  935.  p. 

Biens.  B.     1  Roll.  Abr.  916.     Qff.  Ex.  7.  s.  10. 

53.     11  Vtn.    Abr.  *66!     2  r.urn.  .hist.  (r/)  Swinb.  93  1,  935.  p.  7.  *.  10. 

369.     7  Co.   15  b,     3  Brfo.  Abri  64.     2  (r)  Oil'.  Ex.  59.     3  Bac  Abr.  6  I 


CHAP.   IY.]  WHICH  GO  TO  THE  HEIR.  194 

[194]  But,  as  I  have  already  stated  (/),  corn,  which  is  raised 
by  yearly  cultivation,  shall  go  to  the  executor,  to  compensate  for 
the  expence  and  labour  of  tilling,  manuring,  and  sowing  the  lands, 
and  for  the  encouragement  of  husbandry,  which  is  of  so  public  a 
concern  (g). 

The  same  law,  on  a  similar  principle,  extends  to  other  emble- 
ments, as  hops,  saffron,  hemp,  and  the  like  (A). 

It  has  been  asserted  by  a  learned  writer  (i),  that  roots  of  all  kinds, 
such  as  parsnips,  carrots,  turnips,  and  skirrets,  shall  go  to  the  heir, 
since  they  cannot  be  taken  without  digging  and  breaking  the  earth, 
which  must  of  necessity  be  a  detriment  to  the  inheritance.  It  seems, 
however,  perfectly  clear,  that  these  articles,  as  requiring  an  annual 
cultivation,  fall  within  the  like  reasoning,  which  the  law  has  adopt- 
ed in  regard  to  corn,  and  consequently  shall  belong  to  the  exe- 
cutor (k). 

But  things  which  produce  no  annual  profit  are  not  comprehended 
under  the  name  of  emblements;  therefore,  although  the  testator 
himself  hath  sown  the  land  with  acorns,  or  planted  it  with  oaks, 
[195]  alders,  elms,  or  other  trees,  they  shall  not  be  classed  as  em- 
blements, but  shall  belong  to  the  heir  (/)_.  So  if  the  testator  improved 
the  natural  produce,  either  by  trenching,  or  by  sowing  hay-seed, 
such  increase  shall  go  to  the  heir;  for  the  executors  have  no  pro- 
perty in  the  natural  produce,  and  in  such  instances  that  which  was 
artificial  cannot  be  distinguished  from  it  (m).  Wall  fruit  also, 
though  greatly  improved  by  culture,  seems  to  fall  within  the  same 
principle  and  to  be  the  property  of  the  heir.  But  the  executor,  we 
have  seen,  is  entitled  to  hops,  though  growing  og  ancient  roots,  for 
they  are  produced  by  manurance  and  industry  (n). 

Although  timber  trees  originally  belong  to  the  soil,  yet,  if  A. 
seised  in  fee,  sell  the  timber  trees  on  his  land  to  B.  and  B.  died 'be- 
fore they  are  felled,  they  shall  belong  to  his  executor  (o).  So,  if  a 
man  sell  his  land,  reserving  the  timber  trees,  they  remain  in  him 
by  particular  contract,  as  chattels  distinct  from  the  soil,  and  shall  go 
to  his  executor.  For,  in  both  these  cases,  in  construction  of  law, 
they  are  abstracted  from  the  earth,  although  they  are  not  actually 
severed  by  the  axe  (p). 

But,  if  a  tenant  in  tail  sell  the  timber  trees  on  his  soil,  such  sale 
will  not  be  effectual  without  docking  the  intail,  unless  they  were 
actually  felled  in  the  lifetime  of  such  tenant,  otherwise  they  will 
[196]  descend  with  the  land  to  the  issue  (q).  So,  if  A.  lease  lands 
for  life,  or  years,  excepting  the  trees,  they  continue  parcel  of  the 

(/)  Supr.  150.  (m)  Com.  Dig1.  Biens.  G.     1  Gilb.  L. 

(g)  Off.  Ex.  59.     3  Bac.  Abr.  64.  of  Ev.  249.     Harg.Co.  Litt.  56. 

(h)  Ibid.                                                 '  (»)  Harg\  Co.  Litt.  55  b.     Cro.  Car. 

(i)  Off.  Ex.  62,  63.     VitL  also  Gilb.  515.     Vid.  supr.  150. 

L.  of  Ev.  249.  0)  3  Bac.  Abr.  64.     Off.  Ex.  59,  60. 

(k)  Harg.  Co.  Litt.  55  b.  2  Bl.Com.  (p)  3  Bac.  Abr.  64.     Off.  Ex.  60. 

123.  (q)  Ibid.     Stukeley  v.  Butler,  Hob. 

(7)  2  Bl.  Com.  123.  Com.  Dig.  Biens.  173.     11  Co.  50 
G.      1  Harg.  Co.  Lit.  55  I).. 


196  OF  HEIR-LOOMS.  [BOOK  II. 

inheritance,  so  long  as  they  are  annexed  to  the  land,  and  descend 
with  it  to  the  heir.  So  if  a  feoffment  be  made  excepting  the  trees, 
and  the  feoffee  afterwards  buy  them,  they  are  re-annexed  to,  and 
become  part  of  the  inheritance  (r).  So,  where  a  lessee  for  years 
purchased  trees  growing  on  land,  and  had  liberty  to  cut  them  with- 
in eighty  years,  and  he  afterwards  bought  the  inheritance  of  the 
land  and  died;  it  was  held  that  the  executor  should  not  have  the 
trees,  for  although  they  were  once  chattels,  yet  by  the  purchase  of 
the  inheritance  they  were  re-united  to  the  land  (s). 

Such  personal  chattels  inanimate,  as  go  to  the  heir  with  the  in- 
heritance, and  not  to  the  executor,  are,  for  the  most  part,  denomi- 
nated heir-looms.  The  termination  loom,  in  the  Saxon  language, 
signifies  a  limb,  or  member;  consequently  heir-looms  denote  limbs 
or  members  of  the  inheritance.  They  are  such  things  as  cannot 
be  taken  away  without  damaging,  or  dismembering  the  freehold. 
Whatever,  therefore,  is  strongly  affixed  to  the  inheritance,  and 
cannot  be  severed  from  it  without  violence  or  damage,  quod  ab 
[197]  asdibus  non  facile  revellitur,  is  a  member  of  the  same,  and 
shall  pass  to  the  heir,  as  chimney-pieces,  pumps,  tables,  and  benches 
which  have  been  long  fixed  (t).  The  law  is  the  same  in  regard  to 
coppers,  leads,  pales,  posts,  rails,  window-shutters,  windows,  whe- 
ther of  glass  or  otherwise,  wainscots,  doors,  locks,  keys,  mill- 
stones fixed  to  a  mill,  anvils,  and  the  like.  They  are  annexed  to 
the  freehold,  and  are  held  to  form  part  of  it  (u). 

Although  pictures  and  looking  glasses  generally  go  to  the  exe- 
cutor, as  personal  chattels,  yet  it  has  been  held,  that  if  they  are 
put  up  instead  o*f«vainscot,  they  shall  belong  to  the  heir..  He  has 
a  right  to  the  house  entire  and  undefaced  (x). 

But  at  so  remote  a  period  as  that  of  Henry  the  Seventh,  it  was 
adjudged,  that  if  the  lessee  annex  any  chattel  to  the  house  for  the 
purposes  of  his  trade,  he  may  disunite  it  during  the  continuance 
of  his  interest,  if  he  can  do  so  without  prejudice  to  the  freehold. 
And  therefore,  that  if  such  lessee  be  a  dyer,  and  erect  a  furnace  in 
the  middle  of  the  floor  not  affixed  to  any  wall,  he,  and  by  conse- 
quence his  executor,  may  take  it  down  during  the  term,  if  it  can 
be  removed  without  injury  to  the  inheritance;  that  while  the  term 
["198]  continues,  he  is  the  owner  both  of  the  floor  and  of  the  fur- 
nace, but  that  if  it  be  not  severed  while  his  interest  subsists,  it  goes 
to  the  lessor  of  his  heirs,  inasmuch  as  the  lessee  is  not  master  of 
both  the  subjects  of  alteration  (y). 

In  modern  times  the  doctrine  of  annexation  has,  on  principles  of 
public  policy,  been  gradually  relaxing;  therefore,  if  things  of  this 

(r)  Com.  Dig.  Biens.  H.     11  Co.  50.  Swinb.  p.  6.  s.  7. 

4  Co.  63  b.  {x)  L.  of  Test.  380,  381.     Cave  v. 

(&•)  11  Vin.  Abr.  168.     Ow.  49.  Cave,  2  Vern.  508. 

(0  2  Bl.  Com.  427,  428.     Lcl.  Petre  {y)  3  Bac.  Abr.  63.    Keilvr.  88.  Ow. 

v.   Heneage,  12  Mod.  520.  70,    71.      Off.  Ex.  60,   61.     Ex  parte 

(u)  4  Burn.    Eccl.  L.  256.      3  Bar.  Quincv,   1  Atk.    477.       Poole's    case, 

Abr.  63.      Off.  Ex.  62.      4  Co.  63,  64,  Salk.  368.   Lr.  of  Test.  380. 


CHAP.    IV.]  .  OF  HEIK-LOOMS.  198 

species  can  be  removed  without  injury  to  the  fabric  of  the  house, 
or  the-soil  of  the  freehold,  they  shall  in  general,  be  the  property  of 
the  executor  (z).  Thus,  modern  tables,  although  fastened  to  the 
floor,  grates,  irons,  ovens,  jacks,  clock-cases,  in  whatever  mode 
annexed  to  the  freehold,  have  by  more  recent  cases  been  held  to 
belong  to  the  executor  (a).  So  also  have  hangings,  tapestry,  beds 
fastened  to  the  ceiling,  and  iron  backs  to  chimneys  (6).  So,  like- 
wise in  favour  of  trade,  brewing  vessels,  vats  for  dyers,  and  soap- 
boilers' coppers.  (1)  So  also  furnaces,  though  fixed  to  the  freehold, 
and  purchased  with  the  house  (c).  It  has  also  been  ruled,  that  a 
cyder  mill  (2)«erected  on  the  land  shall  go  to  the  executor,  and  not 
to  the  heir.  And  in  a  case  where  the  litigating  parties  were  the 
executor  of  the  tenant  for  life,  and  the  remainder-man,  the  Lord 
[1!)9]  Chancellor  seemed  to  be  of  opinion  that  a  fire-engine  set  up 
for  the  benefit  of  a  colliery,  as  between  heir  and  executor,  might 
in  some  instances  be  considered  as  personal  property  (d).  Such  la- 
titude encourages  improvements,  and  is  beneficial  to  trade.  But  if 
the  subject  be  not  capable  of  removal  without  injury  to  the  free- 
hold; as,  if  a  furnace  is  so  affixed  to  the  wall  of  a  house  as  to  be 
essential  to  its  support,  it  shall  not  be  taken  away  by  the  execu- 
tor (e). 

The  ancient  jewels  of  the  Crown  are  also  held  to  be  heir-looms, 
for  they  are  necessary  to  maintain  the  state,  and  to  support  the  dig- 
nify of  the  existing  sovereign  (f ). 

So,  also  the  collar  of  S.  S.  is  an  heir-loom,  and  shall  go  to  the 
heir  (g). 

There  are  also  other  personal  chattels,  which  descend  to  the  heir 
in  the  nature  of  heir-looms;  as  ancient  portraits  of  former  owners 
of  the  mansion,  though  not  fastened  to  the  walls,  a  monument  or 
tombstone  in  a  church,  or  the  coat  of  armour  of  his  ancestor  there 
hungup,  with  the  pennons  and  other  ensigns  of  honour  suited  to 

(z)  3  Bac.  Abr.  63.   in  note.      Lord  Yin.  Abr.  167,  172.     Squier  v.  Mayer, 

Dudley  v.  Lord  Warde,  Ambl.  113.  2  Freem.  249.  Harg\  Co.  Litt.  53  .note  5. 
Harvey  v.  Harvey.  2  Str.  1141.  (d)  Lord   Hardwicke  in  Lawton  v. 

(a)  4  Burn.  Eccl.  L.  257.  Lawton,   3  Atk.   15.      See  also  Ehves 

(b)  4  Burn.  Eccl.  L.  256.  259.    L.  of  v.   Maw,  3  East  T.  Rep.  38. 

Ni.  Pr.  34.     Harvey  v.   Harvev,  2  Str.  (e)   Off.   Ex.  61.     4  Burn.   Eccl.    L. 

1141.     Ex  parte  Quincv,   1  Atk.  477.  256.     11  Vin.  Abr.  166. 

Beck  v.  Rebow,   1  P.  Wins.  94.  (/)  2  Bl.  Com.  428.  Harg.  Co.  Litt. 

(c)  Poole's  case,  Salk.  368.  L.  of  Ni.  18  b. 

Pr.  34.   Ex  parte  Quincy,   1  Atk.  477.         (g)  11  Vin.  Abr.  167.     0\v.  124. 
Lawton  v.  Lawton,  3  Atk.  14.  16.    11 

(1)  Gale  v.  IVard,  14  Mass.  Rep.  3.52.  But  as  between  mortgagor  and  mort- 
gagee who  has  taken  possession,  a  kettle  in  a  fulling  mill  used  for  dying  cloth, 
being  set  in  brick  work,  passed  to  the  mortgagee.  Union  Bank  v.  Emerson, 
15  Mass.  Rep.  159. 

(2)  Holmes  v.  Tremper,  20  Johns.  Rep.  29.  See  Hermancev.  Vernoy,  6  Johns. 
Rep.  5,  and  Bradley  v.  Overhoudf,  13  Johns.  Rep.  404,  where  the  question  was 
between  the  vendor  and  vendee  of  land. 

17 


199  QP  HEIK-LOOMS.  [BOOK  II. 

his  degree  (h).  And  the  court  will  order  an  inspection  of  articles 
claimed  by  the  plaintiff  as  heir-looms,  in  a  chest  at  the  bankers  of 
the  defendant,  who  insists  by  his  answer  that  he  has  a  lien  on  the 
contents  of  the  chest  (i).  Pews  also  in  a  church  may  immemorially 
[200]  descend  from  the  ancestor  to  the  heir,  as  appurtenant  to  his 
house  (&). 

By  the  special  custom  of  some  places,  carriages,  and  also  various 
articles  of  household  furniture  and  implements  may  be  heir-looms. 
But  such  custom  must  be  strictly  proved  (7). 

On  the  other  hand,  a  granary  built  on  pillars  in  Hampshire  is  by 
custom  a  chattel,  and  belongs  to  the  executor  (jn). 

The  heir  is  likewise  entitled  to  other  personal  chattels,  inani- 
mate, to  which  this  appellation  of  heir-looms  does  not  belong.  An 
annuity,  although  only  a  chattel  interest,  is,  as  we  have  seen  (n), 
descendible  to  the  heir  (o).  So,  a  grant  from  the  crown  of  one 
thousand  pounds  per  annum  out  of  the  four  and  a  half  per  cent. 
Barbadoes  duty,  with  collateral  security  out  of  other  revenue,  al- 
though a  mere  personal  chattel,  having  no  relation  to  lands  or  te- 
nements, nor  partaking  of  the  nature  of  a  rent,  was  adjudged  to  the 
heir  (p).  But  such  an  annuity  is  personal  property,  and  will  pass 
under  a  will  attested  by  two  witnesses,  by  a  residuary  clause,  be- 
queathing all  the  rest,  residue  and  remainder  of  the  personal  estate 
to  the  executor  (q).  So  where  A.  on  his  marriage  settled  land  on 
himself  and  his  wife,  and  the  issue  of  the  marriage,  with  remainder 
over, and  assigned  to  trustees  bankers  assignments  established  by 
act  of  parliament,  and  made  a  perpetual  annuity  redeemable  by 
parliament,  and  directed  to  go  as  personal  estate,  and  limited  the 
profits  thereof  to  the  same  person  as  by  the  settlement  would  be 
entitled  to  the  land,  and  if  the  annuities  should  be  redeemed  by 
parliament,  the  money  should  be  invested  in  the  land,,  to  be  set- 
tled to  the  same  uses,  and  A.  died;  it  was  decreed  that  these  annui- 
ties being  thus  redeemable  were  to  be  considered  as  money  di- 
rected to  be  laid  out  in  lands,  and  to  be  as  real  estate,  which  after 
the  wife's  death  should  go  to  the  settler's  heir  (r).  On  the  other 
hand,  a  perpetual  annuity  of  4,000/.  issuing  out  of  the  revenue  of 
the  post-office,  but  redeemable  upon  payment  of  100,000/.  when 
the  state  of  affairs  would  permit,  which  sum,  when  paid,  was  to  be 
laid  out  in  the  purchase  of  lands  to  be  settled  in  manner  there  men- 
tioned, was  not  considered  as  money  to  be  laid  out  in  land,  but 
merely  as  a  perpetual  annuity,  inasmuch  as  there  was  no  certainty 
of  the  redemption  (.?). 

(/;,)  2  Bl.  Com.  429.    Harg.  Co.  Litt.  Abr.  146,  pi.  25.     Dr.  &  Stud.  90. 

18  b.  (;;)  Com.  Dig.  Biens,  A.  2.     Earl  of 

(t)  Earl  of  Macclesfield  v.  Davis,  3  Stafford  v.  Buckley,  2  Ves.  170. 

Ves.  &  Bea.  16.  (y)  Aubin  v.  Daly,  4  Barn.  &  Aid. 

(/:)  2  Bl.  Com.  529.     12  Co.  105.  59. 

(/)  Ibid.  42K.     tfarg.  Co.  Litt   18  b.  0)  Disher  v.  Disher,  1  P.  Wms.  204. 

(m)  11  Vin.  Abr.  1.54.  (,s)  Countess  of  Holderness  v.  Mar- 

(»)   Vid.  supr.  178.                                .  quisof  Carmarthen,  1  Bro. C.  Rep.377. 

(o)  Vin.  Abr.  15 3.   Argdo.    Roper  v.  and  1  P.  Wms.  206,  in  note.  S.  C. 
UadcliflT,  10  Mod.  237.  vid.  also  U  vin, 


CHAP.    IV.]  OF  CHATTELS.  200 

Where  a  copyhold  tenement  was  burnt  down,  and  money  col- 
lected on  briefs  for  rebuilding  it  was  lodged  in  the  hands  of  a  guar- 
[201]  dian  of  the  tenant  in  tail,  who  died  under  age;  it  was  held 
that  the  money  should  go  to  his  heir,  both  because  of  the  intail, 
and  because  it  was  copyhold;  but  that  allowance  should  be  made 
to  his  personal  representative  for  the  amount  of  the  interest  of  the 
money  from  the  time  it  was  so  lodged  to  the  death  of  the  in- 
fant (t). 

If  A.  recover  land  and  damages,  or  a  deed  relative  to  land  and 
damages,  and  die  before  execution,  his  heir  shall  have  execution 
for  the  land  or  deed,  and  the  executor  for  the  damages  (it). 


Sect.  III. 
Of  chattels  which  go  in  succession. 

Chattels  given  to  a  corporation  aggregate,  as  the  dean  and 
chapter  of  a  cathedral  church,  the  mayor  and  commonalty  of  a  city, 
the  head  and  fellows  of  a  coHege,  shall  go  in  succession;  but  in  case 
of  a  sole  corporation,  whether  created  by  charter  or  prescription, 
as  a  bishop,  parson,  vicar,  master  of  a  hospital,  and  the  like,  chat- 
tels real  and  personal  in  possession,  and  in  action,  belong  to  their 
[202]  respective  executors.  Such  property  shall  no  more  go  to 
their  successors  than  it  shall  go  to  an  heir;  for  succession  in  a  body 
politic  is  inheritance'  in  case  of  a  private  person  («).  So,  if  the 
chattel  be  granted  to  such  sole  corporation  and  his  successors:  As, 
if  a  term  for  years  be  granted  to  a  bishop  and  his  successors,  his 
executors  shall  have  it  (b).  So  if  an  obligation  or  other  specialty 
be  executed  to  him  and  his  successors,  he  can  take  it  only  as  a  pri- 
vate individual,  and  not  in  his  corporate  capacity  (c). 

But  by  custom  a  corporation  sole  may  take  goods  and  chattels 
in  succession,  as  in  London,  where  the  chamberlain  is  a  special 
corporation  for  taking  bonds  for  orphanage  money.  And  such  cus- 
tom has  been  frequently  adjudged  good  (d).  Also  in  some  instances, 
particularly  of  chattels  in  action,  the  law  is  the  same  without  a 
custom  (e).  As  if  the  president  of  the  college  of  physicians  reco- 
ver in  debt  against  a  party  for  practising  without  a  licence,  his 
successor,  and  not  his  executor,  shall  have  a  scire  facias  on  the 
judgment,  for  the  debt  was  recovered  as  due  to  him  and  the  col- 
lege  (/). 

(t)  Com.  Dig.    Biens,    B.     Rook  v.  (c)  4  Co.  65.     Dy.  48  a.     2  Bl.  Com, 

Warth,  1  Ves.  460.  430,  431. 

(w)  11  Vin.  Abr.  145. 169.   Bcamond  (d)  Harg.  Co.  Litt.  9  a.   note  1.     4 

v.  Long,  Cro.  Car.  227.     Off.  Ex.  93.  Co.    64  b.     Wilford,    Chamberlain    of 

Com.  Dig.  Execution,  E.    1  Roll.  Abr.  London,  Cro.  Eliz.  464.  682. 

889.  (c)  Harg.  Co.  Litt.  9  a.  note  1.   Vin. 

(a)  Com.  Dig.  Biens,  C.     Franchises  Abr.  tit.  Corporation,  L. 
F.  16.     4  Co.  65.     Harg.  Co.  Litt.  9  i  (  f)  1  Roll,  Abr.  515. 

(b)  I  Roll.  Abr,  515. 


202  OF  CHATTELS  WHICH  GO  [BOOK   II. 

So,  if  the  master  of  an  hospital  recover  in  that  character  the  ar- 
[203]  rears  of  an  annuity  due  to  the  hospital,  and  die,  they  go  to  his 
successor,  and  not  to  his  executor  (g-). 


Sect.  IV. 

Of  chattels  which  go  to  a  devisee  or  remainder-man:  and  herein 
of  emblements,  and  heir-looms. 

A  devisee  of  the  lands  is  entitled  to  all  those  chattel  interests 
which  have  been  stated  to  belong  to  the  heir  (a);  and  in  one  re- 
spect he  has  an  advantage  to  which  the  heir  is  not  entitled.  Such 
devisee,  and  not  the  executor  of  the  devisor,  shall  have  the  emble- 
ments. Thus  it  has  been  held,  that  if  A.,  seised  in  fee  of  land, 
sow,  and  devise  it  to  B.  for  life,  remainder  to  C.  in  fee,  and  die 
before  severance,  B.  shall  have  the  emblements,  and  not  the  exe- 
cutor of  A.:  Or  that  if  B.  die  before  severance,  his  executor  shall 
not  have  them,  but  they  shall  go  to  him  in  remainder:  Or  that  if 
the  devise  be  only  to  B.,  and  B.  die  before  severance,  there  his 
executor  shall  have  them,  although  B.  did  not  sow.  These  points 
were  so  adjudged  on  the  principle,  that  the  devisee,  in  relation  to 
the  chattels  belonging  to  the  lands,  stands  in  the  place  of  the  exe- 
cutor by  the  express  terms  of  the  will  (b).  This  distinction,  how- 
[204]  ever,  seems  not  very  reasonable  (c):  li.  appears  strange,  that 
the  corn  should  pass  1o  the  devisee  as  appurtenant  to  the  soil,  and 
yet  shall  not  descend  to  the  heir.  But  a  devisee  of  the  goods,  stock, 
and  moveables  is,  it  seems,  entitled  to  growing  corn  in  preference 
both  to  the  devisee  of  the  land  and  the  executor  id). 

In  respect  of  the  rights  of  the  executor  of  tenant  for  life,  as  op- 
posed to  those  of  the  remainder-man,  it  is  a  general  rule,  that 
where  a  party  hath  an  uncertain  interest  in  land,  and  his  estate  de- 
termines, yet  he  hath  a  title  to  the  corn  that  is  sown,  and  the  other 
emblements  on  the  land,  though  the  property  of  the  soil  be  alter- 
ed (e).  (1)  With  the  view  of  giving  all  possible  encouragement 
to  agriculture,  the  law  has  created  a  property  in  the  emblements 
distinct  and  separate  from  that  of  the  soil,  and  has  provided  that 
such  property  shall  be  at  the  entire  disposal  of  the  owner,  that  he 
may  not  decline  cultivation,  lest  the  harvest  should  be  reaped  by  a 
stranger.     Moreover,   the  tenant  who  has  sown   has  acquired   a 

(g)  1  Roll.  Abr.  515.  (d)  Winch.   51.      Cox    v.   Godsalve, 

(a)  2  Bl.  Com.  428.  Holt's   MSS.   157.     L.  of   N.  Pri.  34. 

(b)  Winch.  51.      Gilb.  L.  of  Ev.  248.  Swinb.  93.5,  934.  p.  7,  s.  10. 
Vid.  Grantham  v.  Hawley,  Hob.  132.  (e)  Gilb.  L.  of  Ev.  240. 

(c)  Harg.  Co.  Litt.  55*b.  note  2. 

(1)  So  if  tenant  for  life  make  a  lease  for  years,  and  die  before  the  expiration 
of  the  term,  the  nnd^r  tenant,  or  tenant  for  years,  if  he  has  sown  the  lands,  is  en- 
titled to  the  crop,     fievans  v.  Brineer,  4  Harr.  k  Johns.  139. 


CHAP.  IV.]  TO  A  DEVISEE.  204 

property  in  the  corn  by  his  expence  and  labour.  It  was  his  own 
in  its  original  state,  and  before  it  was  committed  to  the  earth;  and 
his  property  shall  not  be  divested  by  its  being  sown  on  his  own 
ground,  and  the  less,  on  account  of  the  skill  and  industry  he  has 
employed  in  raising  it  (f). 

[205]  On  these  principles  the  doctrine  of  emblements  in  respect 
to  the  executor  of  tenant  for  life  is  founded.  Therefore,  if  such 
tenant  sow  the  land,  and  die  before  severance,  inasmuch  as  his  es- 
tate was  uncertain,  and  determined  by  the  act  of  God,  his  executor 
shall  have  the  corn,  and  he  may  take  it  from  off  the  ground  of  the 
remainder-man  (g).  So  it  has  been  held,  that  at  common  law,  on 
the  death  of  tenant  in  dower,  her  executor  was  entitled  to  the 
corn;  and  that  the  statute  of  Merton  (h),  which  gives  her  the 
power  of  devising  it,  was  passed  only  in  affirmance  of  the  common 
Jaw(z.) 

If  A.  seised  in  fee  of  land  sow,  and  then  convey  it  to  B.,  and 
die  before  severance,  the  corn  shall  belong  to  B.,  and  not  to  the 
executors  of  A.;  on  the  principle,  that  eveiy  man's  donation  is  to 
be  taken  most  strongly  against  him;  and  therefore,  it  shall  pass  not 
only  the  land  itself,  but  also  the  chattels  which  are  incidental  to 
it  (k).  If  A.  seised  in  fee  of  land  sow,  and  then  convey  it  to  B. 
for  life,  with  remainder  to  C.  for  life,  and  B.  die  before  the  corn 
is  reaped;  C.  shall  have  it,  and  not  the  executors  of  B.,  for  B.  had 
no  property  in  the  corn  arising  from  his  own  charge  and  industry, 
but  merely  by  A. 's  donation  of  the  land,  to  which  the  corn  is  ap- 
purtenant; and  by  force  of  the  same  donation,  by  which  B.  had  a 
[206]  right  to  the  corn,  C.  is  entitled  to  it  after  the  death  of  B.(7). 

If  A.  seised  in  fee  sow  land,  and  give  it  to  B.  for  life,  remain- 
der to  C.  for  life,  and  they  both  die  before  severance,  it  shall  go 
to  A. ;  for  when  the  force  of  the  donation  is  spent  the  property 
shall  result  to  the  donor  (?n).  If  a  disseisor  of  tenant  for  life  sow 
the  land,  and  such  tenant  die  before  severance,  his  executor,  and 
neither  the  disseisor  nor  the  reversioner  shall  have  the  corn  (n). 
But  trees  shall  not  be  regarded  in  favour  of  the  executor  of  the 
tenant  for  life,  any  more  than  of  any  other  executor,  as  emble- 
ments, or  as  distinct  from  the  soil;  for  they  are  parcel  of  the  inhe- 
ritance, and  are  planted  for  the  benefit  of  future  generations  (o). 
Therefore,  if  such  tenant  plant  oaks,  or  other  timber  trees-,  or 
trees  not  timber,  or  hedges,  or  bushes,  they  shall  not  go  to  his  ex- 
ecutor, but  to  him  in  remainder  (p).  If,  as  we  have  seen,  the 
tenant  in  fee  make  a  lease  excepting  the  trees,  and  afterwards  grant 

(/)  Id.  241.  v.  Hawlev,  Hob.  132.     Roll.  Abr.  727. 

(g)  Gilb.  L.  of  Ev.  242.  Harg.  Co.  (»i)  Gilb.  L.  of  Ev.  248.  Grantham 
Litt  55  b.     5  Co.- 116.    Roll.  Abr.  726.     v.  Hawlev,  Hob.  132. 

727.  O)  2  Bac.  Abr.  64.     Goulds.  143. 

(h)  20  H.  3.  c.  2.  (o)   Gilb.  L.  of  Ev.  242.     2  Bl.  Com. 

(t)  Gilb.  L.  of  Ev.  2*44,  Harg.  Co.     123.     Co.  Litt.  55  b. 

Litt.  55    b.  •        (p)   Gilb.  L.  of  Ev.  249.    Com.  Dig-. 

(k)  Gilb.  L.  of  Ev.  247.  Biens,  G.  1.  H.     Harg-.  Co.  Litt.  55  b. 

■iilb.  L.  of  r-      If!  Grantham     Lat.  270, 


206  OF  CHATTELS  WHICH  GO  [BOOK  II. 

the  trees  to  the  lessee,  they  are  not  re-annexed  to  the  inheritance, 
but  the  lessee  has  an  absolute  property  in  them,  and  they  shall  go 
to  his  executor  (q). 

But  if  tenant  by  the  curtesy,  or  in  dower,  or  after  possibility 
[207]  of  issue  extinct,  cut  down  trees,  they  shall  not  go  to  the 
executor,  but  to  the  remainder-man,  or  reversioner  (r).  So  if  A. 
tenant  for  life,  with  remainder  to  B.  for  life,  cut  down  trees,  they 
shall  belong  to  him  in  reversion  (s). 

Yet,  if  there  be  a  lessee  for  life,  or  years,  without  impeachment 
of  waste,  he  has  such  an  interest  and  property  in  timber  trees, 
that,  in  case  they  are  cut  down  in  his  lifetime,  or  during  the  term, 
they  shall  belong  to  his  executor  (t). 

If  the  trees  are  thrown  down  by  tempest  in  the  lifetime  of  such  les- 
see, or  during  the  term,  they  shall  go  to  his  executor,  and  vest 
equally  as  if  they  had  been  severed  by  the  act  of  the  party  (w).  (1) 
But  a  lessee,  though  without  impeachment  of  waste,  has  not  an 
absolute  property  in  the  trees;  for  if  they  are  not  cut  down  in  his 
lifetime,  or  during  the  term,  his  executor  shall  not  have  them,  but 
they  shall  go  to  the  lessor,  as  annexed  to  the  freehold  (w).  So,  if 
A.,  tenant  for  life,  without  impeachment  of  waste,  with  power  to 
cut  trees,  and  to  make  leases  for  three  lives,  lease  for  three  lives, 
excepting  the  trees,  and  die  before  they  are  cut,  the  trees  are  re- 
annexed,  and  shall  not  be  severed  by  his  executor  (a?). 

[208]  A  tenant  pur  auter  vie  is  considered  by  the  law,  in  re- 
gard to  emblements,  in  the  same  light  as  a  tenant  for  his  own  life: 
and  therefore  if  a  man  be  tenant  for  the  life  of  another,  and  the  ces- 
tui que  vie  die  after  the  corn  be  sown,  the  tenant  pur  auter  vie, 
and  in  case  of  his  death,  his  executor  shall  have  the  emblements  (y). 

The  advantages  of  emblements  are  also  extended  to  the  paro- 
chial clergy  by  the  stat  28  H.  8.  c.  11.  (z). 

The  lessees  of  tenants  for  life  at  common  law,  on  the  death  of 
the  lessors,  exercised  the  unreasonable  privilege  of  quitting  the 
premises,  and  paying  rent  to  nobody  for  the  occupation  of  the  land 
subsequent  to  the  last  quarter-day,  or  other  day  assigned  for  the 
payment  of  rent.  For  the  representative  of  the  tenant  for  life 
could  maintain  no  action  for  the  use  and  occupation,  much  less 
in  case  there  were  a  lease;  nor  had  the  remainder-man  such  a 
right  because  the  rent  had  not  accrued  due  in  his  time  (a).  Nor 
could  equity  relieve   by  apportioning  it  (b).     To  remedy  which 

(//)  Com.  Dig.  Biens,  II.    4  Co.  63  b.  (y)  2  Bl.  Com.  123. 

(r)  Com.  Dig.  Biens,  H.     4  Co.  63.  (z)  2  Bl.  Com.  123.  vid.  1  Roll.  Abr. 

11  Co.  82.  655. 

(.s)  Com.  Dig.  Biens,  II.     Al.  81.  (a)  2  Bl.   Com.    124.     1   Fonbl.   2d 

(t)  Com.  Dig.  Biens,  H.     Harg.  Co.  edit.  384.  Jennerv.  Morgan,  1  P.  Wms. 

Litt.  220.     Moore,  327.     11  Co.  82  b.  392.     Paget  v.  Gee,  Ambl.  199. 

(it)  11  Co.  84.     1   Roll.  Rep.  181.  (b)  Jenner  v.   Morgan,    1   P.  Wms. 

(;,>)  1  Roll.  Rep.  182.     Lat.  270.  392.     Hay  v.  Palmer,  2  P.  Wms.  502. 

(.<;)  Lat.  163.  sed  vid.  Anon.  Bunb.  294. 

(1)  See  fihult  V.  Barker,  12  Sfrg;  Be  Ilawl. 


CHAP.   TV.]  TO  THE  REMAINDER  MAN.  208 

hardship  it  is  now  enacted  by  stat.  11  Geo.  2.  c.  19.  s.  15.  (1)  that 
the  executors  of  tenant  for  life,  on  whose  deatli  any  lease  deter  - 
[209]  mined,  shall,  in  an  action  on  the  case,  recover  of  the  lessee 
a  rateable  proportion  of  rent  from  the  last  day  of  payment  to  the 
death  of  such  lessor. 

The  provisions  of  this  statute  have,  by  an  equitable  construc- 
tion, been  extended  also  to  the  case  of  tenants  in  tail,  where 
leases  are  determined  by  their  deaths  (c). 

Equity,  however,  will  notin  general  apportion  dividends  of 
stock  (d);  but  where  the  money  is  laid  out  in  a  mortgage  till  a  pur- 
chase can  be  made,  the  interest  is  capable  of  being  apportioned  (e). 
and  the  distinction  seems  to  turn  on  this  point,  that  the  interest  on 
a  mortgage  is  in  fact  due  from  day  to  day,  and,  therefore,  not  pro- 
perly an  apportionment ;  whereas  the  dividends  accruing  from  the 
public  funds  are  made  payable  on  certain  days,  and,  consequently, 
cannot  be  apportioned  {/).  On  the  principle  of  this  distinction, 
dividends  of  money  directed  to  be  laid  out  in  land,  and  in  the 
mean  time  to  be  invested  in  government  securities,  and  the  inte- 
rest and  dividends  to  be  applied  as  the  rents  and  profits  would  in 
case  it  were  laid  out  in  land,  were  held  not  to  be  apportionable, 
[210]  though  the  tenant  for  life  died  in  the  middle  of  the  half 
year  (g).  And  the  decision  was  the  same,  "where  the  money  had 
been  originally  secured  by  mortgage,  but  by  order  of  the  court  had 
been  transferred  on  government  securities  (A). 

But  where,  by  a  marriage  settlement,  maintenance  for  daughters 
was  made  payable  half-yearly  at  Lady-day  and  Michaelmas,  and  to 
continue  until  their  portions  should  become  payable,  namely,  at 
their  age  of  eighteen,  or  marriage,  the  portions  and  maintenance 
to  be  raised  out  of  the  rents  and  profits  of  the  estate,  or  by  sale, 
mortgage,  or  lease  of  the*  premises,  and  one  of  the  daughters  at- 
tained the  age  of  eighteen  on  the  16th  of  August,  she  was  decreed 
to  have  maintenance  prorata  from  the  last  Lady-day  to  the  time 
of  her  attaining  that  age.  On  the  ground  that  the  general  inten- 
tion of  the  settlement  was  clear,  that  maintenance  should  be  paid 
during  the  whole  interval  of  time  from  the  commencement  of  the 
term  till  the  portion  should  become  due,  that  is  to  say,  half-yearly 
on  the  days  above  specified  in  every  instance  where  it  could  hap- 
pen, and  where  that  could  not  be,  it  was  a  case  not  directly  pro- 
vided for  by  the- settlement  as  to  the  time  of  payment,  but  within 

(c)  Paget  v.  Gee,  Ambl.  198.     Vex-  Palmer,  2  P.  Wins.  501.  and  503.  note  1 . 

nan  v.  Vernon,  2  Bro.  Ch.  Rep.  659.  (g)  Com.  Dig.  Chancery  (4.   N.  5.) 

(</)  Rashleigh  v.  Master,  3  Bro.  Ch.  Sherrard  v.  Sherrard,  3  Atk.  502.    Wil- 

Rep.  99.  son  v.  Harman,  Ambl.  279.   S.  C.  2  Vez. 

(e)  Edwards  v.  Countess  of  Warwick,  672.  sed  vid.  3  Vin.  Abr.  18.  pi.  3. 

2  P.  Wms.  176.  (A)  Pearly  v.  Smith,  3  Atk.  260. 

(/)   1  Fonbl.  2d  edit.  385.     Hay  v. 

(1)  The  1 4th  and  15th  sections  of  this  statute  are  in  force  in  PennsyhmiiU. 
i  Binn.  626.      l£oberte'  Dig.  236.     See  Brratts  v.  Biscoe,  4  Hair,  &  Johns.  140, 


210 


OF  CHATTELS,  &C. 


[BOOK   II. 


the  general  provision  of  the  maintenance  itself,  which  was  express- 
ed to  continue  till  the  portions  should  become  payable  (i). 

And  even  dividends  of  money  in  the  funds  directed  to  be  appli- 
ed to  the  maintenance  of  an  infant,  or  secured  by  the  husband  as 
a  separate  provision  for  his  wife,  would  perhaps  be  apportioned  in 
equity  ;  inasmuch  as  it  would  be  difficult  for  them  to  find  credit 
for  necessaries,  if  the  payment  depended  on  their  living  to  the  end 
of  the  quarter  (k).  And  on  this  principle  an  apportionment  of  an 
annuity,  being  for  the  separate  maintenance  of  a  feme  covert,  has 
been  allowed  at  law  (/).  Yet  if  the  quarterly  payments  were  ori- 
ginally prospective  payments  by  way  of  maintenance  for  the  en- 
suing quarter,  and  not  payable  at  the  end  of  each  quarter,  in  order 
to  discharge  the  expences  incurred  in  the  three  preceding  months, 
that  circumstance  might  make  a  difference  (m). 

If  a  lessee  for  life. of  a  manor  seize  an  estray,  and  die  before 
the  year  and  day  are  elapsed,  it  shall  belong  to  his  executor  (n). 

[211]  In  regard  to  heir-looms,  I  have  already  stated,  that  the 
strictness  of  the  ancient  rule  has  in 'later  time  been  relaxed,  as  be- 
tween the  executor  and  the  heir  (o).  But  it  has  been  still  more 
so,  as  between  the  executors  of  tenant  for  life,  or  in  tail,  and  the 
reversioner  (p). 

Hence  it  has  been  adjudged,  that  a  fire-engine  set  up  for  the  be- 
nefit of  a  colliery  by  tenant  for  life,  or  in  tail,  shall  be  considered 
as  his  personal  estate,  and  shall  go  to  his  executor,  and  not  to  the 
remainder-man.  And  indeed  reasons  of  public  convenience  ope- 
rate more  strongly  as  between  such  parties,  than  even  as  between 
heir  and  executor.  A  tenant  for  life  would  be  discouraged  from 
making  improvements,  if  the  benefits  of  them  might  devolve,  not 
on  his  personal  representatives,  but  on  a  remote  remainder-man, 
perhaps  the  next  day  after  the  improvements  were  effected  [q). 


(i)  Hay  v.  Palmer,  2  P.  Wins.  501. 

(k)  Vid.  1  Fonbl.  2d  edit.  386.  and 
2  Bl.  Rep.  1017. 

(/)  Howell  v.  Hanforth,  2  Bl.  Kep. 
1016. 

(?ra)  Per  De  Grey  C.  J.  2  Bl.  Kep. 
1017. 


O)  11  Vin.  Abr.  145.     Moore,  11. 

(o)  Supr.  198. 

(p)  L.  ofNi.  Pri.34. 

(q)  Lawton  v.  Lawton,  3  Atk.  13. 
Lord  Dudley  v.  Lord  Warde,  Ambl. 
198. 


i;  212  ] 


CHAP.  V. 

OP  THE  CHATTELS  WHICH  GO  TO  THE  WIDOW. 


Sect.*  I. 

Of  the  chattels  real  ivhich  go  to  the  widow:  and  herein  also,  of 
such  chattels  real  as  belong  to  the  surviving  husband. 

In  contemplation  of  law,  a  complete  unity  of  person  subsists 
between  the  husband  and  wife.  As  long  as  the  relation  continues, 
they  are  regarded  as  one  individual.  The  very  existence  of  the 
wife  is  suspended  during  the  coverture,  or  entirely  merged  or  in- 
corporated in  that  of  the  husband.  On  this  principle,  whatever 
personal  property  belonged  to  her  when  sole,  is  vested  in  the  hus- 
band by  the  marriage  (a). 

And,  first,  in  regard  to  chattels  real :  Some  are  in  the  nature  of 
a  present  vested  interest,  in  others  she  has  only  an  interest  possi- 
ble or  contingent.  Of  the  first  class  are  leases  for  years,  estates 
by  statute-merchant,  statute-staple,  or  elegit,  or  any  other  chattel 
real  in  her  possession.  The  second  class  is  distinguished  into  such 
[213]  as  are  called  possibilities,  and  such  as  are  denominated  con- 
tingent interests;  as,  if  a  term  of  years  be  devised  to  A.  for  life, 
and  after  A. 's  death  to  B.,  B.'s  interest  in  the  residue  of  the  term 
operates  by  way  of  executory  devise,  and  is  styled  a  possibility. 
But,  if  a  real  estate  be  limited  to  A.  for  life,  and  after  the  decease 
of  A.,  and  if  B.  die  in  A.'s  lifetime,  to  C.  for  a  term  of  years, 
this  operates  not  as  an  executory  devise,  but  as  a  remainder,  and 
therefore  is  considered  as  a  contingent  interest  (5). 

In  the  chattels  real  of  the  wife,  present  and  vested,  an  interest 
of  the  nature  of  the  joint  tenancy  of  the  husband  and  wife  is  created 
by  the  marriage,  and  is  a  consequence  of  their  legal  unity,  but  sub- 
ject to  alienation  by  the  husband  in  his  lifetime  (c).;  for  example, 
in  case  of  a  lease  for  years,  he  shall,  during  the  coverture,  receive 
the  rents  and  profits  of  it ;  but  if  he  does  nothing  more,  on  his  dy- 
ing before  his  wife,  it  shall  survive  to  her,  and  shall  not  go  to  his 
executor  ;  but  he  may  during  the  coverture  alienate  it,  either  di- 
rectly or  consequentially,  by  such  acts  as  shall  induce  an  alienation. 
He  may  sell,  surrender,  or  dispose  of  it  in  his  lifetime  at  his  plea- 
sure. On  his  attainder  or  outlawry,  it  shall  be  forfeited  to  the 
king,  or  it  may  he  taken  in  execution  for  his  debts  {d). 

(a)  2  Bl.  Com.  433.  Com.  Dig.  Baron         (c)  Plowd.  418.     2  Bl.  Com.  435. 
&  Feme,  D.  1.  (rf)  2  Bl.  Com.  434.     Harg.  Co  J,itt. 

(&)  Harg.  Co.  Litt.  351.  note  1.  4fi  b.     Plowd.  263. 

IS 


213  OF  CHATTELS   REAL  [BOOK  II. 

He  has  also  during  coverture  a  right  to  assign  such  possible  and 
[214]  contingent  interests  as  have  been  just  mentioned,  unless, 
perhaps,  in  those  cases  where  the  possibility  or  contingency  is  of 
such  a  nature  that  it  cannot  happen  during  his  life.  As  where  a 
lease  is  granted  to  the  husband  and  wife  for  their  lives,  with  re- 
mainder to  the  executors  of  the  survivor  (e).  Or,  unless,  in  equi- 
ty at  least,  the  future  or  executory  interest  in  a  term,  or  other 
chattel,  were  provided  for  the  wife  with  the  consent  of  the  husband 
before  marriage,  for  in  that  case  his  disposition  of  it  would  be  a 
breach  of  his  own  agreement  (/). 

If  the  husband  dispose  not  of  the  chattels  real  of  the  wife  in 
his  lifetime,  and  die  before  her,  they  shall  not  pass  by  his  will, 
nor  shall  they  go  to  his  executor  ;  for,  not  having  altered  the  pro- 
perty in  his  lifetime,  they  were  never  transferred  from  the  wife  ; 
but  after  his  death,  she  shall  remain  in  her  ancient  possession  (g).  (1) 

But,  if  the  husband  grant  the  term,  on  condition  that  the  gran- 
tee shall  pay  a  sum  of  money  to  his  executors,  though  the  condi- 
tion be  broken,  and  the  executors  enter,  this  is  a  disposition  of  the 
term,  and  the  wife  is  barred  of  it>  for  the  whole  interest  was  pass- 
ed away  (h). 

[215]  If  the  husband  and  wife  be  ejected  of  the  term,  and  the 
husband  bring  an  ejectment  in  his  own  name  only,  and  recover, 
this  also  is  an  alteration  of  the  term,  and  vests  it  in  the  husband  (?'); 
for  his  suing  alone  is  expressive  of  his  intention  to  divest  the  wife 
of  her  interest,  and  to  treat  the  term  as  exclusively  his  own. 

If  he  submit  the  term  to  the  arbitration  of  A.,  who  awards  it 
to  B.,  it  will  be  a  disposition  by  the  husband  against  the  wife  ( k). 
So,  the  husband  may  make  a  lease  of  the  term  to  commence  after 
his  death,  and  it  shall  be  good,  although  the  wife  survive  (/)  ;  but 
he  cannot  charge  such  chattel  real  beyond  the  coverture;  as,  if  he 
grant  a  rent-charge  out  of  the  term,  and  the  wife  survive,  she 
shall  avoid  the  charge,  for  by  her  survivorship  she  is  remitted  to 
the  term,  of  which  the  coverture  did  not  divest  her  (m). 

Nor  if  there  be  judgment  against  him,  can  execution  be  sued 
out  after  his  death  against  the  term  (n);  nor  shall  it  after  his  death 
be  extended  on  a  statute  or  recognizance  acknowledged  by  him  (o); 
nor,  as  it  seems,  for  a  debt  due  from  him  to  the  kingQoJ.     Nor, 

(e)  10  Co.  51.  Harg.  Co.  Litt.  46  b.         (I)  Grate  v.  Locroft,  Cro.  Eliz.  287. 

Com.  Dig.  Baron  and  Feme,  E.  %  Poph.  5. 

(/)  Harg.  Co.  Litt.  351.  note  1.  (m)    Harg.   Co.   Litt.   351.     Plowd. 

(g)  2  Bl.  Com.  434.     Plowd.  418.  418. 

(h)  Com.  Dig.  Baron  and  Feme,   E.         (n)  1  Roll.  344.  346. 
2.     Harg.  Co.  Litt.  46  b.  (o)  1  Roll.  Abr.  346. 

(£)    1  Roll.    Rep.  359.     Harg.    Co.         (p)  2  Roll.  Abr.  157.     1  Roll.  Abr. 

Litt.  46  b.  Sed  vid.  note  6.  ibid.  346. 

(k)  Dyer,  183. 

(1)  A  conveyance  by  a  husband  will  pass  the  entire  interest  of  his  wife,  enti- 
tled to  a  life  estate  in  lands,  in  the  event  of  his  surviving;  but  if  she  survives  him, 
it  passes  only  an  interest  during  his  life.     Evans  v.  Kingsbury,  2  Hand.  Rep.  120. 


CHAP.  V.J  WHICH  GO  TO  THE  WIDOW.  216 

[216]  has  his  disposition  of  part  of  the  term  the  effect  of  a  dispo- 
sition of  the  whole.  As,  if  A.  be  possessed  of  a  term  for  forty 
years  in  right  of  his  wife,  and  grant  a  lease  for  twenty  years,  re- 
serving a  rent,  and  die;  although  the  executors  of  the  husband  shall 
have  the  rent,  for  it  was  not  incident  to  the  reversion,  inasmuch 
as  the  wife  was  not  party  to  the  lease,  yet  she  shall  have  the  resi- 
due of  the  term  (q).  If  the  term  be  extended,  the  wife  shall  have 
the  term  after  the  extent  is  satisfied  (r).  If  the  husband  and  wife 
mortgage  the  term,  and  the  husband  pay  the  money,  and  enter  and 
die,  the  wife  shall  have  it  (s).  If  the  wife  and  her  husband  were 
joint  tenants  of  a  rent-charge  for  their  lives,  the  wife,  in  case  she 
survive,  shall  have  the  arrears  incurred  during  the  coverture  (/). 
If  the  husband  and  wife  make  a  lease  reserving  rent,  and  she  as- 
sent after  the  death  of  the  husband,  she  shall  have  the  arrears  in- 
curred in  his  lifetime  (it).  Or  if  the  husband  be  entitled  to  an  ad- 
vowson  in  right  of  his  wife,  and  after  an  avoidance,  but  before 
presentation  die,  his  wife,  and  not  his  executors,  shall  present  (to). 

In  case  the.  wife  die  before  the  husband,  all  the  chattels  real  of 
the  wife,  in  which  there  exists  a  present,  actual,  and  vested  inte- 
rest, become  absolutely  and  entirely  his  own  by  survivorship  (x), 
[217]  and  that  without  taking  out  administration  to  her(y).  To 
entitle  himself  to  her  chattels  real,  which  are  not  so  vested,  he 
must  make  himself  her  representative,  by  becoming  her  adminis- 
trator. It  seems  formerly  to  have  been  doubted,  whether,  if,  hav- 
ing survived  his  wife,  he  died  during  the  suspense  of  the  contin- 
gency on  which  any  part  of  his  wife's  property  depended,  his  re- 
presentative, or  his  wife's  next  of  kin,  had  a  right  to  the  benefit 
of  it ;  but  by  a  series  of  authorities  it  is  now  settled,  that  the  hus- 
band's representative  is  beneficially  entitled  as  well  to  this  species 
of  the  wife's  property  (z.),  as  to  any  other,  which  devolved  to  him 
either  as  survivor,  or  by  virtue  of  the  grant  of  administration. 
And  although  the  husband's  right  to  such  grant  be  personal  only, 
and  not  transmissible,  and,  as  I  have  before  stated  (a),  the  spiritual 
court  be  in  such  case  obliged  by  the  stat.  31  E.  3.  to  commit 
administration  to  the  next  of  kin  of  the  wife,  yet  such  grantee  is 
regarded  in  equity  as  a  mere  trustee  for  the  representative  of  the 
husband  (b). 

If  the  tenant  in  dower  grant  a  lease  for  years,  and  marry,  and 
die,  the  husband  shall  have  the  rent  in  arrear  in  his  wife's  life- 
time (c).  And  by  the  stat.  32  Hen.  S.  c.  37.  arrears  of  rent  due 
as  well  before  as  after  coverture  to  the  wife  seised  in  fee,  in  tail, 

(q)  Harg.  Co.  Litt,  46  b.  and  Feme,  E.  2. 

(r)  1  Roll.  Abr.  344.  (y)  Com.  Dig-.  Baron  and  Feme,   E. 

(s)  Ibid.  2  Roll.  Abr.  345. 

(t)  1   Roll.   Abr.   350.     Dembyn    v.  (z)  Harg-.  Co.  Lit.  351.  note  1. 

Brown,  Moore,  887.  (a)  Supr.  116. 

(w)  Ibid.  350.  lb)    Sed  vid.    Harg.    Co.   Litt.   351. 

(u>)    Com.     Dig.    Baron  and  Feme,  note  1.     1    Harg.    Law    Tr.      475,    in 

E.  3.     Co.  Litt.  Sol.  note. 

(z)  Co.  Litt.  300.  Com.   Dig.  Baron  (c)  Moore,  7. 


217  OF  CHATTELS  PERSONAL  [BOOK  II. 

or  for  life,  are  on  her  death  given  to  the  husband.  If  the  husband 
[2181  be  enlitled  to  an  advowson  in  right  of  his  wife,  and  he  sur- 
vive, he  shall  have  an  avoidance  which  happened  during  the  cover- 
ture (d).  If  a  wife  were  possessed  at  her  marriage  of  a  trust  term 
to  her  separate  use,  the  surviving  husband  shall  be  entitled  to  it, 
except  in  special  cases  (e);  as  if,  before  marriage,  it  were  settled  on 
her  with  the  assent  of  the  husband  (/).  If  the  husband  and  wife 
mortgage  a  term  of  the  wife,  and  the  husband  survive,  he  shall 
have  the  equity  of  redemption  (g). 

If  the  husband  sow  the  land  of  which  he  is  seised  in  right  of  his 
wife,  and  she  die,  he  shall  have  the  profits  (A).  Or  if  he  die  before 
the  wife  and  before  severance,  his  executors  shall  be  entitled  to  them; 
but  it  seems,  that  in  the  event  of  his  so  dying,  if  the  lands  were  sown 
before  the  marriage,  the  wife  shall  have  the  profits,  and  not  the  ex- 
ecutors of  the  husband  :  for  the  corn  committed  to  the  ground  be- 
longs to  the  freehold,  and  is  not  transferred  to  the  husband  ;  and, 
therefore,  as  it  was  undisposed  of  in  his  lifetime,  it  devolves  to 
the  wife  (i).  So,  if  *A.  seised  in  fee  sow  copyhold  lands  and  sur- 
render them  to  the  use  of  his  wife,  and  die  before  severance,  it 
seems  that  the  wife  shall  have  the  corn,  and  not  the  executors 
[219]  of  the  husband  ;  for  this  is  a  disposition  of  the  corn  as  ap- 
purtenant to  the  land,  and  since  the  husband  disposed  of  it  during 
his  life,  it  cannot  belong  to  his  executors  (&).  But,  if  the  husband 
and  wife  be  joint  tenants,  and  the  husband  sow  the  land,  and  die, 
it  seems  the  corn  shall  go  to  the  executor  of  the  husband,  for  the 
land  is  not  cultivated  by  a  joint  stock,  the  corn  is  altogether  the 
property  of  the  husband,  and  it  shall  not  be  lost  by  being  commit- 
ted to  their  joint  possession,  any  more  than  if  it  had  been  sown  in 
the  land  of  the  wife  only  (/). 


Sect.  II. 

Of  the  chattels  personal  which  go  to  the  ividow:  and  herein, 
of  such  personal  chattels  of  the  ivife  as  go  to  the  surviving 
husband. 

Chattels  personal,  or  choses  in  action,  as  debts  on  bond,  sim- 
ple contracts,  and  the  like,  do  not  vest  in  the  husband,  until  he  re- 

(d)  Com.    Dig.    Baron    and    Feme,  (g)  Young  v.  Radford,  Hob.  3. 

E.  3.     Harg.  Co.  Litt.  351.  \h)  Gilb.  L.  of  Ev.  245.     Harg.  Co. 

(e)  Com.  Dig.  Baron  and  Feme,  E.  2.     Litt.  55  b. 

1    Fonbl.    98.     Sir    Edward    Turner's  (/)  Gilb.  L.  of  Ev.   246.     Harg.   Co. 

case,  1  Vern.  7.     Pitt  v.  Hunt,  ib.  18.  Litt.  55  b.  note  5.     Roll.  Abr.  727. 

Tudor  v.   Samayne,  2  Vern.  270.  Jew-  (A)  Roll.  Abr.  727. 

son  v.  Moulson,  2  Atk.  421.     Sed  vid.  (/)  Gilb.  L.  of  Ev.  245.     Roll.   Abr. 

Countess  Strathmore  v.   Bowes,  2  Bro.  727.     Sed  vid.  Harg.  Co.  Litt.  55  b.  et 

Chan.  Rep.  345.  not.  7.     Vin.  Abr.  tit.  Emblements,  pi. 

(/)  Com.  Dig.   Chancery,  2   M.    9.  16.   Com.  Dig.  Biens.  G.  2.    L.  of  Test. 

Harg.  Co.  Litt.  351.   note  1."  380. 


CHAP.  V.]  WHICH  GO  TO  THE  WIDOW.  219 

ceives,  or  recovers  them  at  law.  When  he  has  thus  reduced  them 
into  possession,  they  become  absolutely  his  own,  and  at  his  death, 
[220]  shall  go  to  his  representatives,  or  as  he  shall  appoint  by  his 
will,  and  shall  not  revest  in  his  wife  («).  (1) 

In  respect  to  such  chases  in  action  as  vested  in  the  wife  before 
her  marriage,  the  husband  must  sue  jointly  with  her  to  recover 
them  (b).  (2)  As  to  such  of  the  wife's  choses  in  action,  as  accru- 
ed subsequent  to  the  coverture,  he  may  sue  either  in  their  joint 
names,  or  alone,  at  his  pleasure  (c).  (3) 

If  he  join  her  in  action  and  recover  judgment,  and  die,  the 
judgment  will  survive  to  her  on  the  principle,  that  although  his 
bringing  the  action  in  his  own  name  alone  be  a  disagreement  to 
the  wife's  interest,  and  indicate  his  intention  that  it  shall  not  sur- 
vive to  her  :  yet  if  he  bring  an  action  in  the  joint  names  of  him- 
self and  his  wife,  the  judgment  is,  that  they  both   shall  recover, 

(«)  2  Bl.  Com.  434.    Harg\  Co.  Litt.  (c)  Blackborn    v.    Greaves,  2   Lev. 

351.  107.     Howell  v.   Maine,   3    Lev.    403. 

(6)  Com.  Dig.    Baron  and  Feme,  V.     Al.   36.     Cappin  v. ,  2  P.  Wms. 

1    Roll.    Abr.    347.     Ow.  82.     Wood-  497.     Vid.    Mitchinson  v.   Hewson,  7 

ward  v.  Parry,   Cro.    Eliz.  537.     Gar-  Term  Rep.  349. 
forth  v.  Bradley,  2  Ves.  676.    1  Sid.  25. 

(1)  Lodge  v.  Hamilton,  2  Serg.  &  Rawle,  493.  And  the  same  rule  prevails 
where  the  husband  and  wife  jointly  during  the  coverture  become  entitled  to  a 
chose  in  action.  Ibid.  But  in  TVhitaker  v.  Whitaker,  6  Johns.  Rep.  112,  it  was  de- 
cided, that  a  husband  who  survives  his  wife  is  entitled  to  all  her  choses  in  action, 
whether  reduced  into  his  possession  in  her  lifetime  or  not.  See  also  5  Johns.  Cha. 
Rep.  206.  See,  however,  Roper's  Law  of  Husb.  and  Wife,  vol.  i.  p.  202.  Udall 
v.  Kenney,  3  Cow.  Rep.  590.  Bohn  v.  Headley,  7  Harr.  &  Johns.  257.  Hynes  v. 
Lewis,  1  Tayl.  Rep.  44.  5  Day's  Rep.  294.  As  to  reversionary  interests  of  the 
wife  in  personal  property,  she  is  entitled  by  survivorship  to  them  against  both  the 
general  and  particular  assignee  of  the  husband,  if  he  dies  without  having  reduced 
them  to  possession.  Hornsby  v.  Lee,  2  Madd.  Rep.  16.  Purdeiu  v.  Jackson,  1 
Russ.  Rep.  1.  In  the  last  case,  which  was  most  elaborately  argued,  and  all  the 
cases  referred  to,  the  Master  of  the  Rolls  (Sir  T.  Plumer)  asked  the  counsel  who 
argued  in  support  of  the  claim  of  the  assignee  of  the  husband  ( Mr.  Sugden  and 
Mr.  Shadwell)  "if  there  was  any  case  in  which  the  husband  having  assigned  the 
wife's  present  chose  in  action,  and  having  died  before  the  assignee  obtained  pos- 
session of  it,  the  assignee  prevailed  over  the  surviving  wife ;"  to  which  they  re- 
plied, "  that  they  believed  that  such  a  case  had  not  occurred."  He  further  ob- 
served in  giving  judgment,  "  that  the  act  of  the  husband  cannot  take  away  or 
abridge  the  wife's  right,  unless  he  reduces  the  chose  in  action  into  possession — it 
is  in  vain  for  him  to  stipulate,  that,  though  he  is  unable  or  unwilling  to  reduce  it 
into  possession,  and  though  after  his  death  it  should  continue  to  be  a  chose  i?i  ac- 
tion, his  surviving  wife  shall  not  be  entitled  to  recover  it  for  her  own  benefit." 
See  also  3IiCallop  v.  Blount,  Johnston  v.  Pfisteur, 'Cam.  &  Norw.  96,  464.  Byrne's 
Jldm.  v.  Stewart,  Exparte  Elms,  3  Desaus.  Rep.  135,  155.  Wrhen  the  husband 
obtains  possession  of  the  wife's  personal  property,  he  is  entitled  absolutely  to  it; 
and,  in  the  absence  of  any  contract  or  assumption  on  his  part,  is  not  bound  to  pay 
her  debts,  contracted  before  marriage,  with  it,  if  the  wife  die  before  payment  of 
them.     Beach  v.  Lee,  2  Dall.  Rep.  257. 

(2)  Crozierv.  Gano,  1  Bibb's  Rep.  257.  And  where  a  bond  and  warrant  of  at- 
torney are  given  to  a  feme  dum  sola,  who  afterwards  marries,  the  Court  upon 
affidavit  of  the  facts,  will  direct  judgment  to  be  entered  in  favour  of  the  baron  and 
feme.     Shebk  v.  Cummin,  1  r.  A.  Browne's  Rep.  253. 

(3)  The  State  v.  Krebs,  6  Harr.  &  Johns.  31.  Banks  v.  Marksberry,  3  Lilt.  Rep. 
281.     2  Conn.  Reji.  566.     Armstrong  v.  Silttonton,  2  Tayl.  Rep.  266. 


220  OF  CHATTELS  PERSONAL  [BOOK  II. 

and  therefore  such  action  does  not  alter  the  property,  nor  imply 
an  intention  on  his  part  to  do  so,  and,  consequently,  the  surviving 
wife,  and  not  the  representative  of  the  husband,  is  entitled  to  a 
scire  facias  on  the  judgment  {d).  (1) 

Indeed  it  has  been  asserted  by  a  great  authority,  that,  even  in 
the  case  of  the  husband's  suing  alone  for  the  wife's  debt  and  his 
[221]  dying  before  execution,  his  wife  and  not  his  executors,  shall 
be  thus  entitled  (e).  (2) 

Such  chattels  shall,  a  fortiori,  survive  to  her,  if  the  husband 
die  before  he  has  proceeded  to  reduce  them  into  possession  (f). 
Hence  a  portion  due  to  an  orphan  in  the  hands  of  the  chamberlain 
of  London,  unless  it  be  recovered,  or  received  by  the  husband, 
shall,  on  his  death,  go  to  his  wife,  and  not  to  his  executor,  for  it  is 
clearly  a  chose  in  action  (g).  (3)  So  before  the  stat.  5  Geo.  2.  c.  30. 
s.  26.  where  the  debtor  to  the  wife  became  bankrupt  and  the  hus- 
band claimed  the  debt,  and  paid  the  contribution-money,  and  died 
before  any  dividend,  his  wife,  and  not  his  executor,  was  held  en- 
titled to  the  debt,  for  by  such  payment  the  property  was  not  alter- 
ed (A).  So  if  an  estray  come  into  the  wife's  franchise,  in  case  the 
husband  die  without  seizing  it,  his  wife  and  not  his  executors,  are 
entitled  to  the  seizure.  In  all  these  cases  the  husband's  right  is 
determined  with  the  coverture  {i). 

But,  if  the  husband  grant  a  letter  of  attorney  to  A.  to  receive  a 
debt  or  legacy  clue  to  the  wife,  and  A.  receive  it,  but  before  he 
pays  it  over  the  husband  die,  it  shall  be  considered  as  having  vest- 
[222]  ed  in   his  possession,  and  shall  go  to  his  executors  (k).  {4) 

(d)  Com.   Dig.  Baron  and  Feme,  V.  S.  C     Ca.  Ch.  182. 

Harg.  Co.  Litt.  351.  note  1.  (h)  Com.  Dig-.  Baron  &  Feme,  E.  3. 

(k)  Bond  v.   Simmons,  3  Atly.  21.  Anon.  2  Vern.  707. 

(/)  2  Bl.  Com.  434.  Harg.  Co.  Litt.  0")  2  Bl.  Com.  434.     Harg.  Co.  Litt. 

351.  351  b. 

(g)  Com.   Dig.  Baron  &  Feme,  E.  3.  (k)  Roll.  Abr.  342.    Huntley  v.  Grif- 

Pheasant  v.  Pheasant,    2   Ventr.    341.  fiths,  Moore,  452. 

(1)  And  a  note  and  mortgage  made  to  husband  and  wife,  shall  go  to  the  wife, 
if  she  survive  her  husband,  and  not  to  the  executor  of  the  husband.  Draper  v. 
Jackson,  16  Mass.  Rep.  480.  So  also  a  recognizance  taken  in  the  Orphan's  Court 
for  the  wife's  share  of  land,  in  the  name  of  the  husband  and  wife,  not  reduced 
into  possession,  nor  disposed  of  by  the  husband,  survives,  on  his  death,  to  the 
wife.     Lodge  v.  Hamilton,  2  Serg.  &  Rawle,  491. 

(2)  See  Hammick  v.  Bronson,  5  Day's  Rep.  294  to  297. 

(3)  A  share  of  personal  estate  accruing,  in  right  of  the  wife,  during  coverture, 
vests,  even  before  distribution  made,  in  the  husband,  absolutely,  and  does  not  in 
the  event  of  his  prior  death  survive  to  her.  Griswold  v.  Penniman  et  ux.  2  Conn. 
Rep.  564.  And  a  husband  may  forfeit,  by  his  conduct  in  abandoning*  and  ill  treat- 
ing his  wife,  and  marrying  another  woman  and  continuing  to  live  with  her  for 
twenty  years,  all  just  claim  to  the  wife's  distributive  share  of  personal  estate  in- 
herited by  her;  and  a  court  of  equity  will  lay  hold  of  the  property^  and  provide 
for  her  maintenance  out  of  it.     Dumond  v.  Magee,  4  Johns.  Cha.  Rep.  318. 

(4)  Schuyler  v.  Hoyle,  5  Johns.  Cha.  Rep.  196.  But  if  the  husband  and  wife 
make  a  joint  power  to  receive  the  debt  or  legacy  due  to  the  wife,  and  the  attor- 
ney obtained  possession  of  the  property,  but  before  he  had  paid  over  the  entire 
share  the  husband  died,  the  wife  is  entitled,  in  her  own  right,  as  survivor,  to  that 
portion  not  actually  paid  over  to  the  husband.  Ibid, 


CHAP.  V.]  WHICH  GO  TO  THE  WIDOW.  222 

Such  are  the  principles  of  law  on  this  subject  ;  but  in  equity  it  is 
held,  that  a  settlement  before  marriage,  if  made  in  consideration 
of  the  wife's  fortune,  entitles  the  representative  of  the  husband 
dying  in  her  lifetime  to  her  choses  in  action.  But  it  has  been  as- 
serted, that  if  it  be  not  made  in  consideration  of  her  fortune,  the 
surviving  wife  will  be  entitled  to  the  t.hings  in  action,  the  property 
of  which  has  not  been  reduced  by  the  husband.  So,  if  it  be  in 
consideration  of  part  of  her  fortune,  such  things  in  action  as  are 
not  comprised  in  that  part,  it  is  said,  survive  to  the  wife.  And 
in  a  case  'where  a  settlement  was  made  to  provide  for  the  wife, 
without  mentioning  her  personal  estate,  the  Lord  Keeper  decreed, 
that  such  estate  should  belong  to  the  representatives  of  the  hus- 
band, and  held,  that  in  all  cases  where  there  is  a  settlement  equi- 
valent to  the  wife's  portion,  it  shall  be  intended  that  the  husband 
shall  have  the  portion,  although  there  be  no  agreement  for  that 
purpose  (/).  But  the  presumption  of  an  agreement  from  the  mere 
fact  of  a  settlement  being  made  by  the  husband,  is  peculiar  to  the 
case  last  cited,  and  has  been  disavowed  by  the  court  in  several 
other  cases  (m). 

Equity  also  considers  money  due  on  mortgage  as  a  chose  in  ac- 
tion ;  and  it  seems  to  have  been  formerly  understood,  that  since 
the  husband  could  not  dispose  of  lands  mortgaged  to  the  wife  in 
fee  without  her,  and  the  estate  remained  in  her,  she  or  her  repre- 
sentatives were  entitled  to  the  money,  as  incident  to  it ;  but  that 
in  regard  to  a  mortgage  debt,  secured  by  a  term  of  years,  as  the 
[223]  husband  had  an  absolute  power  over  the  term,  there  was  no 
obstacle  to  the  debt's  vesting  in  his  representatives  ;  but  this  dis- 
tinction is  exploded,  and  it  is  now  held,  that  although  in  case  of  a 
mortgage  in  fee,  the  legal  fee  of  the  lands  in  mortgage  continue  in 
the  wife,  she  is  but  a  trustee,  and  the  trust  of  the  mortgage  follows 
the  property  of  the  debt  (n). 

If  the  husband  and  wife  have  a  decree  in  equity,  in  right  of  the 
wife,  and  the  husband  die,  the  benefit  of  the  decree  belongs  to  the 
wife,  and  not  to  the  executor  of  the  husband  (o).  (1) 

But  if  the  wife's  fortune  be  in  the  Court  of  Chancery,  on  the 
husband's  death  his  representatives  shall  be  entitled  to  it,  subject 

(/)  Harg.  "Co.  Litt.  351.  note  1.     3  and  Druce   v.    Denison,   6  Ves.   jun. 

P.  Wms.  200.  note  D.     Prec.    Chan.  385. 

Cleland   v.    Cleland,    63.      Packer    v.         (n)  Harg.  Co.  Litt.  351.  note  1.  Bos 

Wyndham,  412.    Blois  v.   Countess  of  vil  v.  Brander,   1  P.  Wms.  458.  Bates 

Hereford,   2   Vern.     502.      Adams   v.  v.  Dandy,  2  Atk.  207. 
Cole,  Ca.  Temp.  Talb.  168.  (o)    Harg.    Co.    Litt.    351.     note  1. 

(m)  Lister  v.   Lister,    2  Vern.    68.  Nanney    v.    Martin,    1    Chan.    Ca.   27. 

Cleland    v.     Cleland,    Pre.    Cha.    63.  Carr    v.    Taylor,    10    Ves.    jun.    579, 

See  also  Salwey  v.  Salwey,  Amb.  692.  580. 

(1)  Schuyler  v.  Hoyle,  5  Johns.  Cha.  Rep.  210.  So  if  the  husband  die  pend- 
ing' a  suit  in  equity  in  the  name  of  the  husband  and  wife  for  the  recovery  of  per- 
sonal property  in  right  of  the  wife,  the  right  survives  to  her,  and  on  her  death 
the  suit  should  not  be  revived  in  the  name  of  his  administrators.  Vaughan  et  ux. 
v.    Jilkon,  4  Hen.  &  Munf.  452. 


223  OF  CHATTELS  PERSONAL  [BOOK  II. 

to  the  same  equity  as  before,  in  favour  of  the  wife.  In  case  of  her 
death  it  shall  become  the  absolute  property  of  the  husband;  and  it 
has  been  held,  even  where  the  court  detained  the  fund  in  order  to 
enforce  a  provision  for  the  wife,  and  made  a  decree  for  that  pur- 
pose, and  she  survived  her  husband,  yet,  that  on  her  death,  his  re- 
presentatives were  entitled  to  it,  inasmuch  as  it  had  absolutely 
vested  in  him  by  law.  In  these  cases,  it  seems  to  make  no  differ- 
[224]  ence  whether  there  be  any  issue  of  the  marriage  or  not  (p). 

In  case  the  husband  survive  the  wife,  her  chattels  real,  as  we 
have  seen,  shall  become  his  absolute  property  (q).  ButTier  choses 
in  action  shall  go  to  her  representatives,  excepting  the  arrears  of 
rent  due  to  her,  which,  as  I  have  before  stated,  on  her  death  are, 
by  stat.  32  Hen.  8.  c.  37.  given  to  the  husband.  The  ground  of 
the  distinction  is  this  :  The  husband  is  in  absolute  possession  of 
the  chattel  real  during  coverture,  by  a  kind  of  joint-tenancy  with 
his  wife,  and  therefore  the  law  will  not  wrest  it  from  him,  though 
if  he  had  died  first  it  would  have  survived  to  the  wife,  unless  he 
had  altered  the  possession  in  his  lifetime  :  but  a  chose  in  action 
was  never  in  his  possession  :  He  could  acquire  it  only  by  suing  in 
his  wife's  right,  and  as  after  her  death  he  cannot  as  husband  bring 
an  action  in  her  right,  because  they  are  no  longer  one  and  the  same 
person  in  law,  therefore  he  can  never  as  such  recover  the  posses- 
sion. But,  in  the  capacity  of  her  administrator,  he  may  recover 
such  things  in  action  as  became  due  to  her  before  or  during  the 
coverture  (r ). 

In  chattels  personal,  or  choses  in  possession  of  the  wife  in  her 
own  right,  as  ready  money,  jewels,  household  goods,  and  the  like, 
the  husband  hath  an  immediate,  absolute,  and  actual  property  de- 
volved to  him  by  the  marriage,  which  never  can  revest  in  the 
wife  or  her  representatives  (s).  (1) 

[225]  Such  chattels  also  as  are  given  to  the  wife"  after  the 
marriage  shall  belong  to  the  husband,  and  he  "shall  be  entitled  to 
them,  although  they  had  not  come  to  his  possession  at  the  time  of 
her  death  (l).(2)  Thus  it  hath  been  held,  that  if  a  legacy  be  left  to  a 
wife,  to  be  paid  twelve  months  after  the  testator's  death,  and  the 
wife  die  within  that  period,  her  husband  is  entitled  to  it,  for  an 
immediate  interest  was  vested  in  him,  and  subject  to  his  release 
before  the  time  of  payment  (u).  (3) 

Such  are  the  legal  consequences  of  the  unity  of  husband  and 
wife  ;   but   courts  of  equity,  although   they  recognize  the  rule  of 

(p)  1  Fonbl.  8,  89.  Packer  v.  Wynd-  Dr.  &  Stud.  Dial.  1.  cap.  7. 

ham,    Prec.    Chan.    418.      Perkins    v.  (t)  Com.  Dig.   Baron  &  Feme,  E.  3. 

Thornton,  Ambl.  503.  Miles'  Case,  1   Mod.   179.     1  Sid.  337. 

(q)  Supr.  216.  (u)  Com.  Dig.  Baron  &  Feme,  E.  3. 

(r)  2  Bi.  Com.  435.  2  Roll.  Rep.  134. 

(a)  2  Bl.  Com.  435.  3  Bac.  Abr.  65. 

(1)  Reeve's  Dom.  Relations,  1. 

(2)  Swann  v.   Guage,  1  Hayw.  3. 

(3)  Reeve's  Dom.  Relations,  60.     Dade  v.  Alexander,   1  Wash.  Rep.  30'. 


CHAP.   V.]  WHICH  CO  TO  THE  WIDOW.  225 

law  which  considers  the  husband  and  wife  as  one  person,  yet,  in 
some  cases,  will  treat  their  interests  as  distinct  (u).  If  property 
be  given  generally  to  the  wife,  it  shall  vest  in  the  husband,  both 
in  law  and  equity  ;  nor  shall  it  be  supposed  to  be  for  her  separate 
use,  though  she  live  apart  from  the  husband  (v).  (1)  But  where  it  is 
given  to  the  separate  use  of  the  wife,  she  shall  be  entitled  to  it  in 
equity  independently  of  her  husband  (iv).  And  though  it  were  al- 
ways clear  that  she  was  thus  entitled  to  such  property,  if  trustees 
were  interposed,  yet  it  was  formerly  a  doubt,  whether  she  could 
take  it  where  none  were  appointed  (x).  It  is  now  however  settled 
in  the  affirmative.  It  has  been  held,  that  where  A.  devised  lands 
in  fee  to  his  daughter,  a  feme  covert,  for  her  separate  use,  without 
naming  trustees,  it  should  be  a  trust  in  the  husband,  for  it  makes 
no  difference  whether  the  trust  be  created  by  the  act  of  the  party, 
or  by  the  act  of  the  law  (y).  So,  where  a  bond  was  bequeathed 
to  a  wife  for  her  sole  and  separate  use,  and  no  trustees  nominated, 
it  was  held  to  be  completely  vested  in  her  in  equity  (r).(2  ) 

And  equity  will  not  only  raise  a  trust  where  the  gift  is  express- 
ly for  the  separate  use  of  the  wife,  but  will  infer  it  from  words  not 
technical,  or  from  the  circumstances  under  which  the  gift  is  made, 
or,  as  it  seems,  merely  from  the  nature  of  the  subject:  Thus, 
where  an  estate  was  given  to  a  husband,  for  the  livelihood  of  his 
wife,  he  was  considered  as  a  trustee  for  her  separate  use  (a).  So 
where  diamonds  were  given  to  the  wife  by  the  husband's  father, 
on  her  marriage,. it  was  held,  that  they  were  a  gift  to  her  separate 
use,  and  that  she  was  in  equity  entitled  to  them  in  her  own  right  (b). 
And,  where  a  foreigner  made  the  wife  a  present  of  trinkets,  though 
[227]  not  expressly  for  her  separate  use;  Lord  Hardwicke,  C. 
seemed  to-  think  they  should  be  so  construed  (c). 

Gifts,  likewise,  from  the  husband  to  the  wife,  although  the  law 
does  not  allow  the  property  to  pass,  shall,  without  prejudice  to 
creditors,  be  supported  in  equity,  whether  trustees  be  interposed, 
or  not  (d).  Thus,  where  the  husband  transferred  one  thousand 
pounds  South  Sea  Annuities  in  the  name  of  his  wife,  she  was  held 
entitled  to  them,  as  given  to  her  separate  use  (e). 

(u)  1  Fonbl.  87.    Brooks  v.  "Brooks,  Dig.  Baron  &  Feme,  D.  1. 

Prec.  Chan.    24.      Moore  v.  Moore,   1  (z)  Rolfe  v.  Budder,  1  Bunb.  187. 

Atk.  272.  (a)  Darley  v.  Darley,  3  Atk.  399. 

(v)  Palmer  v.  Trevor,    1  Vern.  261.  (b)  Graham  v.  Londonderry,  3  Atk. 

Harvey  v.  Harvey,  2  Vern.  659.  393. 

(w)  Griffith  v.   Hood,  2  Yes.  452.  (c)   1  Fonbl.  98.   Graham  v.  London- 

Ob)  1  Fonbl.  98.   Harvey  v.  Harvey,  deny,  3  Atk.  393. 

1  P.  Wms.  126.     Burton  v.  Pierepoint,  (d)  Lucas  v.  Lucas,  1  Atk.  270. 

2  P.  Wms.  79:  (e)  Ibid.    271.     Graham  v.   London- 
0/)  Bennet  v.  Davis,  2  P.  Wms.  316.  derrv,  3  Atk.  393. 

Darley  v.  Darley,  3   Atk.  399.     Com. 


(1)  Fitch  v.  Ayre,  2   Conn.  Rep.    143.     Barrett  v.    Barrett,   4    Desaus.    Cha. 
Bep.  452.     Tar  her  t  v.   Twining,  1  Yeates,  432. 

(2)  Jamison  v.   Brady,  6   Serg-.  S;  Rawle,  466. 

19 


227  OF  CHATTELS  REAL,  #c.  [BOOK  II. 

So  trinkets  given  to  the  wife  by  the  husband  in  his  lifetime, 
were  decided  to  be  her  separate  estate  (/).  And  where  a  husband 
allowed  his  wife  to  make  profit  of  all  butter,  poultry,  fruit,  and 
other  trivial  matters  arising  from  the  farm,  beyond  what  was  used 
in  the  family,  out  of  which  she  saved  one  hundred  pounds,  which 
the  husband  borrowed,  on  his  death  the  Court  of  Chancery  allow- 
ed the  agreement,  as  a  reasonable  encouragement  of  the  wife's  fru- 
gality, and  admitted  her  to  come  in  as  a  creditor  for  that  sum  (g). 
(1).  So  where  the  husband  agreed  that  the  wife  should  take  two 
guineas  of  every  tenant  beyond  the  fine  paid  to  the  husband  for 
the  renewal  of  a  lease,  this  was  allowed  to  be  the  wife's  separate 
money  (A).  But,  in  all  such  cases,  to  entitle  the  wife  to  such  an 
allowance,  there  must  be  a  sufficient  fund  for  the  payment  of 
debts  (£).  Nor  will  the  court,  in  any  case,  permit  a  gift  of  the 
[228]  whole  of  the  husband's  estate,  while  he  is  living,  for  that 
would  not  be  in  the  nature  of  a  mere  provision,  which  is  all  she 
is  entitled  to  (&). 

But,  if  the  husband  and  wife  live  together,  and  he  provide  her 
with  clothes  and  other  necessaries,  and  she  demand  not  but  suffer 
him  to  receive  the  rents  and  profits  of  her  separate  estate,  or  her 
pin-money,  or  if  she  accept  payments  short  of  what  she  is  entitled 
to  on  his  death,  neither  she  nor  her  representatives  shall  have  an 
account  of  such  separate  estate  farther  back  than  a  year,  for  she 
shall  be  presumed  to  have  waived  her  right  to  the  antecedent  pro- 
duce (/).  (2)  Yet,  under  particular  circumstances,  it  may  be  other- 
wise; as  where  the  wife  had  three  hundred  pounds  per  annum 
pin-money,  and  the  husband,  for  several  years  before  his  death, 
paid  her  only  two  hundred,  but  promised  her  that  she  should  have 
the  whole  at  last,  she  was  held  entitled  to  all  the  arrears  (m). 

In  like  manner  shall  she  be  entitled  to  all  arrears,  if  she  lived 
separate  from  her  husband  (ji). 

But,  if  A.  proposing  to  give  a  married  woman  money  for  her 
separate  use,  and  to  secure  it,  give  her  a  note  for  a  certain  sum,  as 
received,   promising  to  be  accountable,  it  shall   be  assets  in  the 

(f)  Graham  v.  Londonderry,  3  Atk.  82.  Thomas  v.  Bennett,  ib.  340.  Fow- 
393.  ler  v.  Fowler,  3   P.  Wms.  355.     Lord 

(g)  Rlanning  v.  Style,  3  P.  Wms.  339.     Townshend   v.    Windham,  2    Vez.    7. 
(//)  Ibid.   1  Fonbl.95.  Peacock  v.  Monk,  ib.  190. 

(i) iSlanningv.  Style,  3  P.  Wms.  339.         (m)  Ridout  v.  Lewis,  1   Atk.    269. 
(Je)  Beard  v.  Beard,  3  Atk.  72.  Sec  also  1  Eq.  Ca.  Abr.   140.   pi.   7. 

(!)  Powell  v.  Hankey,  2  P.    Wms.         («)  3  Atk.  695.     1  Vez.  298. 


(1)  So  if  by  the  laws  of  another  state  (Louisiana)  the  husband  and  wife  can 
contract  in  relation  to  her  separate  property,  and  she  lends  him  money,  and  takes 
his  obligation  for  it,  and  he  dies  in  Pennsylvania,  the  contract,  according  to  the 
laws  existing  in  such  other  state,  may  be  enforced,  at  the  suit  of  the  wife  surviv- 
ing, against  the  husband's  executors  in  the  Courts  of  Pennsylvania.  Dougherty 
v.  Snyder,   15  Serg.  &  Kawle,  84. 

(2)  Methodist  Episc.  Church  v.  Jat/ws,  3  Johns,  Cha.  Hep.  77.  M'GUnsifs 
Appeal,   M  Serg.  &  Rawle,  64. 


CHAP.  V.]  OF  PARAPHERNALIA.  229 

[229]  hands  of  the  executor  of  the  husband.  So,  likewise,  if  a 
married  woman  deposit  pioney  in  A.'s  hands  to  be  kept  for  her 
separate  use,  it  shall  be  considered  as  part  of  the  husband's  estate  (o). 


Sect.   III. 
Of  the  wife's  paraphernalia. 

The  wife,  also,  may  acquire  a  legal  property  in  certain  effects 
of  the  husband  at  his  death,  which  shall  survive  to  her  over  and 
above  her  jointure,  or  dower,  and  be  transmissible  to  her  personal 
representatives  (a). 

Such  effects  are  styled  paraphernalia;  a  term  which,  in  law,  im- 
ports her  bed,  and  necessary  apparel,  and*  also  such  ornaments  of 
her  person  as  are  agreeable  to  the  rank  and  quality  of  the  hus- 
band (bj.  Pearls  and  jewels,  whether  usually  worn  by  the  wife  (c), 
or  worn  only  on  birth-days,  or  other  public  occasions  (d),  are  also 
paraphernalia. 

To  what  amount  such  claims  shall  prevail  is  a  point  which  can- 
not admit  of  specific  regulations.  It  must  be  left,  on  the  particular 
[230]  circumstances  of  the  case,  to  the  discretion  of  the  court  (e). 

In  the  reign  of  Queen  Elizabeth,  jewels  to  the  value  of  five  hun- 
dred marks  were  allowed,  in  the  case  of  the  wife  of  a  viscount  (f). 
A  diamond  chain,  of  the  value  of  three  hundred  and  seventy 
pounds,  where  the  lady  was  the  daughter  of  an  earl,  and  wife  of 
the  king's  sergeant  at  law,  in'  the  reign  of  Charles  the  first,  was 
considered  as  reasonable  (g).  Jewels  and  plate  bought  with  the 
wife's  pin-money,  to  the  amount  of  five  hundred  pounds,  which 
bore  a  small  proportion  to  the  husband's  estate,  were  regarded  in 
the  same  light  (A).  And  Lord  Hardwicke,  C.  held  the  widow  of 
a  private  gentleman  to  be  entitled  to  jewels  worth  three  thousand 
pounds,  as  her  paraphernalia,  and  that  the  value  made  no  difference 
in  the  Court  of  Chancery  {i).  By  the  custom  of  London,  a  citi- 
zen's widow  may  retain  some  of  her  jewels  as  paraphernalia,  but 
not  all  (k). 

If  the  husband  deliver  cloth  to  the  wife  for  her  apparel,  and  die 
before  it  be  made,  she  shall  have  the  cloth,  as  of  this  species  of  pro- 
perty (/).     If  the  husband  present  his  wife  with  jewels,  for  the  cx- 

(o)  Hodges  v.  Beverley,  Bunb.  188.  Sir  A.  Douglas,  Cro.  Car.  343. 

(a)  2  Bl.  Com.  435.  3  Bac.  Abr.  66.  (/)  2  Leon.    166.     Bindon's    case, 

Ofi",  Ex.  Suppl.  61,  62.     11  Vin.  Abr.  Moore,  213. 

178.  (.»■)  Lord  Hastings  v.  Sir  A.  Douglas, 

(6)  Com.  Dig.  Baron  &  Feme,  F.  3.  Cro.  Car.  343.     S.  C.  Jon.  332.     Roll. 

1  Roll.  Abr.  911.     Swinb.  part  6.  s.  7.  Abr.  911.     11  Vin.  Abr.  179.  S.  C. 

(c)  Lord  Haslings  v.  Sir  A.  Douglas,  (A)  Offley  v.  Offley,  Prec.  Chan.  27. 
Cro.  Car.  343.  (i)  Northey  v.  No'rthey,  2  Atk.  77. 

(d)  Graham  v.  Londonderry,  3  Atk.  (k)  11  Vin.  Abr.  180.  Nels.  Chan, 
394.  Rep.  179. 

(0  3  Bac.  Abr.  66.  Lord  Hastings  v.         (/)  1  Roll.  Abr.  911. 


231  OF  PARAPHERNALIA.  [BOOK  II. 

[231]  press  purpose  of  wearing  them,  they  shall  be  esteemed  mere-  • 
ly  as  paraphernalia,  for  if  they  were  considered  as  a  gift  to  her  sepa- 
rate use,  she  might  dispose  of  them  absolutely,  and  so  defeat  his 
intention  (m). 

The  husband,  if  inclined  to  so  unhandsome  an  exercise  of  his 
power,  may  sell,  or  give  away  in  his  life-time,  such  ornaments  and 
jewels  of  the  wife,  but  he  cannot  dispose  of  them  by  will,  any 
more  than  he  can  devise  heir-looms  from  the  heir(?i).  In  case  of 
a  deficiency  of  assets  for  payment  of  dehts,  the  widow  shall  not 
be  entitled  to  such  paraphernalia  (o),  not  even  if  they  were  pre- 
sents made  to  her  by  the  husband  before  marriage (/?);  nor  shall 
she- be  so  entitled  where  there  are  not  assets  at  the  time  of  the  hus- 
band's death,  although  contingent  assets  should  afterwards  fall 
in (g);  on  the  principle,  that  the  same  might  not.  have  happened 
until  twenty  or  thirty  y%ars  after  the  death  of  the  testator,  nor  pos- 
sibly until  after  the  death  of  the  widow,  when  the  end  and  design 
of  the  widow's  wearing  her  bona  paraphernalia  in  memory  of  her 
husband  could  not  have  been  answered,  and  therefore  it  is  reason- 
able that  in  such  case  it  should  be  reduced  to  a  certainty,  namel}*, 
that  if  there  should  not  be  assets  real  or  personal  at  the  testator's 
death,  or  at  least  when  the  jewels  are  applied  in  the  payment  of 
debts,  then  the  jewels  shall  be  liable. 

But  such  ornaments,  though  subject  to  the  debts,  shall  be  pre- 
ferred to  the  legacies  of  the  husband,  and  the  general  rules  of  mar- 
shalling assets,  (which  will  be  treated  of  hereafter,)  are  applicable 
in  giving  effect  to  such  priority  (/*). 

If  the  husband  pawn  the  wife's' paraphernalia,  and  die,  leaving 
a  fund  sufficient  to  pay  all  his  debts,  and  to  redeem  the  pledges, 
she  is  entitled  to  have  them  redeemed  out  of  his  personal  estate  (s). 
■  [232]  So  where  a  husband  pledged  a  diamond  necklace  of  the  wife, 
as  a  collateral  security  for  money  borrowed  on  a  bond,  and  author- 
ised the  pawnee  to  sell  it  during  his  absence,  at  a  sum  specified,  it 
was  held,  that  this  amounted  not  to  an  alienation,  if  it  were  not  sold 
in  his  lifetime,  and  that  it  was  redeemable  for  his  widow  (t). 

If  a  woman  by  marriage  articles  agree  to  claim  such  part  only  ot 
the  effects  of  the  husband  as  he  shall  give  her  by  his  will,  she  is 
excluded   from  her  paraphernalia  (u).     But  her  necessary  apparel 

(m)  Darley  v.  Darley,  3  Atk.  398.  (r)  2  P.  Wms.  80.  note  1.     Tipping 

(n)  2  Bl.  Com.  436.   Graham  v.  Lon-  v.  Tipping,   I  P.  Wms.  729.     Tynt  v. 

donderry,  3  Atk.  394.  Tynt,  2  P.  Wms.  542.  Lord  Towns- 
Co)  2151.  Com.  436.    Tipping  v.  Tip-  hend  v.  Windham,  2  Vez.  7.     Snelson 

ping,   1  P.  Wms.  730.     Tynt  v.  Tynt,  v.  Corbet,  3  Atk.  369. 

2  P.  Wms.  544.     Snelson  v.  Corbet,  3  (.v)  Graham  v.  Londonderry,  3  Atk. 
Atk.  369.     Bindon's  case,  Moore,  216.  395. 

3  Bro.  P.  C  187.  (/)  Ibid.  3  Atk.  $95. 

(p)  Ridout  v.   Karl  bf  Plymouth,   2         (u)  3  Bac,  Abr.  66.  •  Com.  Dig.    Ba- 

Atk.  104.  ron  and  I'cmc.  F.  3.     Comely  v.  Corac- 

(-7)  Burton  v.  l'ierepoint,  2  P.  Wms  lv,  2  Vern.  49.     S.  C    83. 
SO. 


CHAP.   V.]  OF  PARAPHERNALIA.  232 

shall,  in  all  cases,   be  protected,  as  decency  and  humanity  require, 
even  against  the  claims  of  creditors  (v).   (1) 

If  the  husband  bequeath  to  the  widow  her  jewels  for  her  life, 
and  then  over,  and  she  make  no  election  to  have  them  as  her  pa- 
raphernalia, her  executor  shall  have  no  title  to  demand  them  (iv). 

(v)  2  Bl.  Com.  436.  2  Roll.  Abr.  911.        (w)  Clarges  v.  Albemarle,  2  Vern.  246. 

(1)  By  the  3d  section  of  the  Act  of  10th  April,  1828,  entitled  "An  Act  for  the 
relief  of  the  Poor,"  (Pamph.  Laws,  286,)  if  any  person  die  after  the  first  day  of 
September,  1828,  leaving  a  widow,  and  not  leaving  estate  sufficient  to  pay  his 
debts,  exclusive  of  the  articles  enumerated  in  the  first  section,  viz.  household 
utensils  not  exceeding-  in  value  twenty  dollars,  the  necessary  tools  of  a  tradesman 
not  exceeding  in  value  twenty  dollars,  all  wearing  apparel,  two  beds  and  the  ne- 
cessary bedding,  one  cow,  two  hogs,  six  sheep,  with  the  wool  thereof,  and  the 
yarn  and  cloth  manufactured  therefrom,  and  feed  for  the  said  cow,  hogs,  and 
sheep  from  the  first  of  November  to  the  last  of  May,  a  stove  with  the  pipe  of  the 
same  and  necessary  fuel",  a  spinning  wheel  and  reel,  and  any  quantity  of  meat  not 
exceeding  one  hundred  pounds,  six  bushels  of  potatoes,  six  bushels  of  grain  and 
the  meal  made  therefrom,  and  any  quantity  of  flax  not  exceeding  ten  pounds,  the 
thread  or  linen  made  therefrom,  and  all  bibles  and  school  books  in  the  use  of  the 
family,  his  widow  shall  be  allowed  to  retain  the  said  articles  for  her  own  use, 
and  that  of  her  family. 


(      233      ) 


CHAP.   VI. 

OF    THE    INTERESTS    OF    A    DONEE    MORTIS    CAUSA. 

Another  species  of  interest  in  the  personal  property  of  the  de- 
ceased remains  to  be  considered.  Such  as  vests  neither  in  his  ex- 
ecutor, nor  his  heir,  nor  his  widow,  in  those  respective  characters. 
It  is  created  by  a  gift  under  the  following  circumstances.  When 
in  his  last  illness,  and  apprehensive  of  the  approach  of  death,  he 
delivers,  or  causes  to  be  delivered  to  or  for  a  party  the  possession 
of  any  of  his  personal  effects,  to  keep  in  the  eVent  of  his  decease. 
Such  gift  is  therefore  called  a  donatio  mortis  causa.  It  is  ac- 
companied with  the  implied  trust,  that,  if  the  donor  live,  the  pro- 
perty shall  revert  to  him,  since  it  is  given  only  in  contempla- 
tion (a).  (1) 

A  party's  wife  is  as  capable  of  such  gift  as  any  other  person  (b).  (2) 
And  so  is  a  negro  brought  to  England  as  a  slave,  for  the  moment 
he  set  foot  on  English  ground  he  was  free  (c). 

To  substantiate  the  gift,  there  must  be  an  actual  tradition  or  de- 
livery of  the  thing.  The  possession  of  it  must  be  transferred  in 
point  of  fact,  and  established  by  evidence  beyond  suspicion  (d).  (3) 
[234]  The  purse,  the  ring,  the  jewel,  or  the  watch,  must  be  given 
into  the  hands  of  the  donee,  either  by  the  donor  himself  or  by  his 
order  (e ).  (4)  But  there  are  cases,  in  which  the  nature  of  the  subject 
will  not  admit  of  a  corporeal  delivery;  and  then  if  the  party  go  as 
far  as  he  can  towards  transferring  the  possession,  his  bounty  shall 

(a)  2  Bl.  Com.  514.     11  Vin.  Abr.  (d)  Walter  v.  Hodge,  2  Swans.  Rep. 

176.   Hedges  v.  Hedges,  Prec.  in  Chan.  92. 

269.     Drury  v.  Smith,  1  P.  Wms.  404.  (e)   Ward  v.   Turner,    2  Vez.  431. 

(Z»)  Lawson  v.  Lawson,   1  P.  Wms.  Tate  v.  Hilbert,  2  Ves.jun.  111.  Drun 

441.     Miller  v.  Miller,  3  P.  Wms.  356.  v.  Smith,  1  P.  Wms.  404.     Lawson  v. 

(c)  Shanley  v.  Harvey,  2  Eden's  Rep.  Lawson,  441. 
126. 

(1)  Wells  v.  Tucker,  3  Binn.  370. 

(2)  So  a  delivery  to  the  wife  of  the  donor,  for  the  use  of  a  third  person,  is  a 
sufficient  delivery  to  make  a  good  donatio  mortis  causa. .  Wells  v.  Thicker,  3  Binn. 
366. 

(3)  To  this  principle  is  to  be  referred  the  decision  in  Windows  v.  Mitchell,  1 
Murphy's  Rep.  127,  and  upon  this  ground  it  may  be  sustained. 

(4)  There  is  no  difference  in  the  delivery  required  in  cases  of  donatio  causa 
mortis,  and  other  cases  of  parol  gifts;  in  all  such  case%  the  only  question  is,  whe- 
ther the  donor  has  parted  with  his  dominion  over  the  property  or  not;  and  hence 
if  the  possession  pass  from  the  donor  to  the  donee  in  his  presence,  and  with  his 
consent,  whether  it  lie  delivered  by  his  hand  or  only  by  his  direction  is  immate- 
rial.    M'Dowell  v.  Murdock,  1  Nott  &  M'Cord's  Rep.  237. 


CHAP.  VI.]    OF  A  DONATION  MORTIS  CAUSA.         234 

prevail.  Thus,  a  ship  has  been  held  to  he  delivered  by  the  deli- 
very of  a  bill  of  sale  defeasible  on  the  donor's  recovery.  And  in 
a  recent  case,  the  Lord  Chancellor  seemed  to  be  of  opinion,  that 
such  donation  might  be  effected  by  deed  or  writing  (e). 

The  delivery  also  of  the  key  of  a  warehouse,  in  wbich  goods 
of  bulk  were  deposited,  has  been  determined  to  be  a  valid  delive- 
ry of  the  goods  for  such  a  purpose  (/).  So  the  delivery  of  the 
key  of  a  trunk  has  been  decided  to  amount  to  a  delivery  of  the 
trunk,  and  its  contents  (g).  Nor  in  those  instances  were  the  key 
and  bill  of  sale  considered  in  the  light  of  symbols,  but  as  modes 
of  attaining  the  possession  and  enjoyment  of  their  property  (A). 
So  a  bond  (1)  given  in  prospect  of  death,  although  a  chose  in  ac- 
tion, is  a  good  donation  mortis  causa,  for  a  property  is  conveyed 
by  the  delivery  (e).  Such,  likewise,  have  been  the  decisions  in 
[235]  regard  to  bank  notes  (k).  In  all  these  cases,  the  donor  de- 
livers as  complete  a  possession  as  the  subject  matter  will  permit. 

But  bills  of  exchange,  promissory  notes,  (2)  and  checks  on  bank- 
ers, seem  incapable  of  being  the  objects  of  such  donation  (/).  The 
delivery  of  these  instruments  is  distinguishable  from  that  of  a  bond, 
which  is  a  specialty,  and  itself  the  foundation  of  the  action,  the 
destruction  of  which  destroys  the  demand  ;  whereas  the  bills  and 
notes  are  only  evidence  of  the  contract,  (m). 

Nor  shall  a  delivery  merely  symbolical  have  such  operation. 
As,  where  on  a  deed  of  gift  not  to  take  place  till  after  the  gran- 
tor's death,  a  sixpence  was  delivered  by  way  of  putting  the  gran- 
tee in  possession  ;  the  ecclesiastical  court  held  such  delivery  to  be 
insufficient  for  the  purpose,  and  pronounced  for  the  instrument  as 
a  will  (n).  So  it  was  determined  in  chancery,  that  the  delivery 
of  receipts  for  South  Sea  annuities  was  in  like  manner  ineffectual, 
and  that,  to  make  it  complete,  there  ought  to  have  been  a  transfer 
of  the  stock  (o).  Least  of  all  shall  such  donation  be  effectuated 
by  parol,  as,  merely  saying,  "  I  give,"  without  any  act  to  transfer 
the  property  (/?).  Nor  where  a  man  considering  himself  dying 
took  certain  property  out  of  an  iron  chest,  and  wrote  the  names 
of  two  persons  upon  the  envelope  containing  it,  and  declared  it  to 

te)  Tate  v.  Hilbert,  2  Ves.  jun.  120.  Miller  v.  Miller,  3  P.  Wms.  356.     Hill 

(/)  Ward  v.  Turner,  2  Vez.  434.  v.  Chapman,  2  Bro.  Ch.  Rep.  612. 

\g)  Jones  v.  Selby,  Prec.  in  Chaji.  (/)  Miller  v.  Miller,  3  P.  Wms.  356. 

300.      Ward   v.  Turner,    2  Vez.  441.  Ward  v.  Turner,  2  Vez.  442.     Tate  v. 

Vide  also  Tate  v.  Hilbert,  2  Ves,  jun.  Hilbert,  4  Bro.  Ch.  Rep.  291. 
116.  (m)  Ward  v.  Turner,  2  Vez.  442. 

(ft)  Ward  v.  Turner,  2  Vez.  443.  In)  Ibid.  2  Vez.  440. 

(i)  Sudgrove  v.  Baily,  3  Atk.  214.         (o)  Ibid.  2  Vez.  431. 
Ward  v.  Turner,  2  Vez.  441.     Blount         (p)  Ibid.  2  Vez.  444.     Tate  v.  Hil- 

v.  Burrow,  4  Bro.  Ch.  Rep.  72.  bert,  2  Ves.  jun.  120. 

(/>•)  Drury  v.  Smith,  1  P.  Wms.  404. 

(1)  Welk  v.  Tucker,  3  Binn.  366.  Gardner  v.  Parker,  3  Madd.  Rep.  184. 
And  see  Hurst  v.  Beach,  5  Madd.  Rep.  351,  which  was  the  case  of  mortgage  deeds 
and  of  a  bond. 

(2)  Contra,  Wright  v.  Wright,  1  Cowen's  Rep.  598. 


235  OF  A  DONATION  MORTIS  CAUSA.  [BOOK  II. 

be  his  intention  that  they  should  have  such  property  upon  his  death, 
and  then  returned  it  to  the  chest  and  kept  the  keys  in  his  own' 
possession,  never  having  made  an  actual  delivery  thereof  to  the 
parties  or  to  trustees  for  them  (g).  Nor  shall  a  present  absolute 
[-236]  gift  be  considered  -as  of  this  denomination.  To  bring  it 
within  the  class,  it  must  be  made  to  take  effect  only  on  the  death 
of  the  donor  (r).  Therefore,  the  gift  of  a  check  on  a  banker,  "  Pay 
to  self  or  bearer,  two  hundred  pounds,"  and  also  of  a  promissory 
note,  being  absolute  and  immediate,  was  held  clearly  on  that  ground 
to  be  no  donatio  mortis  causa  (s).  But  where  the  donor  gave  a 
bill  on  his  banker  with  an  indorsement  expressing  that  it  was  for 
the  donee's  mourning,  and  giving  directions  respecting  it,  the  bill 
was  decided  to  be  an  appointment  in  the  nature  of  such  donation, 
since  it  was  for  a  purpose  necessarily  supposing  death  (/). 

Simple  contract  debts  and  arrears  of  rent  are  incapable  of  this 
species  of  disposition,  because  there  can  be  no  delivery  of  them  (w). 

Whether  the  delivery  of  a  mortgage  deed  will  amount  to  such 
gift  of  the  money  due  on  the  security,  seems  to  have  been  an  un- 
decided point  (V),  until  very  lately,  but  it  has  been  recently  held, 
that  a  mortgage,  or  a  bond  given  as  a  collateral  security  for  money 
due  on  mortgage,  cannot  be  made  the  subject  of  &  donatio  mortis 
causa  (w). 

If  the  donor  die,  the  interest  of  the  donee  is  completely  vested; 
nor  is  it  necessary  that  the  gift  should  be  proved  as  part  of  the  will, 
it  operating  on  the  executor  as  a  declaration  of  trust,  and:  his  assent 
[237]  to  it  is  not  requisite,  as  in  the  case  of  a  legacy  (x).  But 
the  gift,  however  regularly  made,  shall  not  prevail  against  credi- 
tors (y). 

Such  ?s  the  interest  which  the  executor,  the  heir,  the  successor, 
the  devisee,  the  remainder-man,  the  widow,  and  the  donee  mortis 
causa  of  the  testator,  respectively  take  in  the  personal  effects. 


(g)  Bunn  v.  Markham,  Holt's  Rep. 
352.     7  Taunt.  Rep.  224. 

O)  Tate  v.  Hilbert,  2  Ves.  jun.  120. 

(s)  Tate  v.  Hilbert,  2  Ves.  pin.  111. 
4  Bro.  Ch.  Rep.  286,   S.  C. 

(/)  Lawson  v.  Lawson,  1  P.  Wms. 
441.  etvid.  Tate  v.  Hilbert,  2  Ves.  jun. 
111. 

(u)  Ward  v.  Turner,  2  Vez.  436. 442. 

(u)  Vid.  3  P.  Wms.  358.  in  note.  S. 


C.  2  Vez.  436.  Hassell  v.  Tynte,  Ambl. 
318.  11  Vin.  Abr.  178.  Lawson  v. 
Lawson,  1  P.  Wms.  441.  Miller  v. 
Miller,  3  P.  Wms.  357. 

(w)  Duffield  v.  Elwes,  1  Sim.  &  Stu. 
239. 

O)  2  Bl.  Com.  514.  Tate  v.  Hilbert, 
2  Ves.  jun.  120. 

(y)  2  Bl.  Com.  514.  Tate  v.  Hilbert, 
2  Ves.  jun.  120. 


[     23**     ] 


chap.  vii. 

HOW     EFFECTS     WHICH    AN    EXECUTOR,  TAKES    IN   THAT    CHARAC- 
TER   MAY    BECOME    HIS    OWN. 

The  property  which  an  executor  takes  in  his  representative  ca- 
pacity may,  in  certain  instances,  be  converted  into  his  own.  As, 
first,  in  regard  to  the  ready  money  left  by  the  testator.  On  its 
coming  into  the  hands  of  the  executor,  the  property  in  the  speci- 
fic coin  must  of  necessity  be  altered  ;  for  when  it  is  intermixed 
with  the  executor's  own  money,  it  is  incapable  of  being  distin- 
guished from  it,  although  he  shall  be  accountable  for  its  value  ;  and 
therefore  a  creditor  of  the  testator  cannot  by  fieri  facias  on  a  judg- 
ment recovered  against  the  executor,  take  such  money  as  cle  bonis 
testatoris  in  execution  (a).  So,  if  the  testator  died  indebted  to 
the  executor,  or  the  executor  not  having  ready  money  of  the  tes- 
tator, or  for  any  other  good  reason,  shall  pay  a  debt  of  the  testa- 
tor's with  his  own  money,  he  may  elect  to  take  any  specific  chat- 
tel as  a  compensation  ;  and  if  it  be  not  more  than  adequate,  the 
chattel  by  such  election  shall  become  his  own  (b)  :  (1)  consequent- 
ly if  by  such  election  he  acquire  the  absolute  ownership  of  the  chat- 
tel, and  die,  his  executor  may  defend  himself  in  an  action  of  de- 
[239]  tinue  brought  for  the  same  by  the  surviving  executor  of  the 
first  testator. 

But  if  the  debt  due  to  him  from  the  testator  amount  to  the  full 
value  of  all  his  effects  in  the  executor's  hands,  there  is  a  complete 
transmutation  of  the  property  in  favour  of  the  executor,  by  the 
mere  act  and  operation  of  law  :  in  the  former  case  his  election, 
and  in  the  latter  the  mere  operation  of  law,  shall  be  equivalent  to  a 
judgment  and  execution,  for  he  is  incapable  of  suing  himself  (c).  (2) 

So  in  the  case  of  a  lease  of  the  testator  devolved  on  the  execu- 
tor, such  profits  only  as  exceed  the  yearly  value  shall,  as  it  has 
been  already  stated,  be  held   to  be  assets  :  it  therefore  follows, 

(a)  Off.  Ex.  89.  185.  infr. 

(6)  Off.  Ex.  89.    Dy.  187  b.    Plowd.         (.c)  Plowd.  185, 

(1)  Livingston  v.  Newkirk,  3  Johns.  Cha:  Rep.  312.  But  he  cannot  make  the 
property  of  the  testator  his  own  by  paying-  debts  out  of  his  own  moneys  to  the 
value  of  the  appraisement.  Hall  v.  Griffith,  2  Harr.  &  Johns.  483.  Hasletfs  Mm. 
v.  Glenn,  7  Harr.  &.  Johns.  17. 

(2)  In  Pennsylvania,  since  the  Act  of  16th  Jlpril,  1794,  (Purd.  Dig.  372.  3  Dull. 
Laws,  521.  3  Sm.  Laws,  143.)  an  executoE  or  administrator  cannot  retain  his 
whole  debt  against  creditors  in  equal  degree  when  there  is  a  deficiency  of  assets; 
he  is  only  entitled  to  retain  prn  rata.     Ex  parte  Meason,  5  Rinn.  Rep.  157. 

20 


239  EFFECTS  OF  EXECUTORS.  [BOOK  II. 

that  if  the  executor  pay  the  rent  out  of  his  own  purse,  the  profits 
to  the  same  amount  shall  be  his  (d).  .  There  are  likewise  other 
means  of  thus  changing  the  property  :  as  if  the  testator's  goods  be 
sold  under  a  fieri  facias,  the  executor,  as  well  as  any  other  per- 
son, may  buy  such  goods  of  the  sheriff;  and  in  case  he  does  so,  the 
property,  which  was  vested  in  him  as  executor,  shall  be  turned  in- 
to a  property  in  jure  proprio  (e). 

If  the  executor  among  the  testator's  goods  find,  and  take  some, 
which  were  not  his,  and  the  owner  recover  damages  for  them  in 
[240]  an  action  of  trespass  or  trover,  in  this,  as  in  all  similar  cases, 
the  goods  shall  become  the  trespasser's  property,  because  he  has 
paid  for  them  (f). 

If  the  grantee  of  the  next  presentation  to  a  living  die  after  the 
church  becomes  void,  and  before  presentation,  his  executor  shall 
have  the  benefit  of  presenting.  Nor  shall  it  be  regarded  as  assets, 
since  it  is  incapable  of  being  sold  (g).  But  if  in  that  case  a  stran- 
ger shall  present,  and  procure  his  clerk  to  be  admitted,  damages 
recovered  by  the  grantee's  executor  in  a  quare  impedit  shall  be 
assets  (h). 

{d)  Off.  Ex.  90,  91  *  (g)  Off.   Ex.   73.      Shep,  Tourhsi 

(f)  Ibid.  91.  496. 

(/)  Ibid.  (fi)  Off.  Ex.  73. 


[     241      ] 


CHAP.    VIII. 

OF  THE  INTEREST  OF  AN  ADMINISTRATOR,  GENERAL  AND  SPECIAL 

OF  A  MARRIED  WOMAN  EXECUTRIX  OR  ADMINISTRATRIX OF  SE- 
VERAL EXECUTORS  OR  ADMINISTRATORS OF  THE  EXECUTOR    OF 

AN  EXECUTOR OF  AN  ADMINISTRATOR    DE    BONIS    NON OF    AN 

EXECUTOR  DE  SON  TORT. 

As  an  administrator  has  the  office  and  quality  of  an  executor, 
the  interest  of  the  one  in  the  property  of  the  deceased  is  in  all 
respects  the  same  as  that  of  the  other  («).  The  interest  of  special 
or  limited  administrators  is  also,  during  its  continuance,  the  same 
as  that  of  an  executor  {b);  but  they  are  not  vested  (as  will  be  shewn 
in  its  proper  place)  with  the  same  powers  and  authority  as  belong 
to  him  (c). 

If  a  married  woman  be  an  executrix,  or  administratrix,  the  hus- 
band has  a  joint  interest  with  her  in  the  effects  of  the  deceased  ; 
such  as  devolves  the  whole  administration  upon  him,  and  enables 
him  to  act  in  it  to  all  purposes,  with  or  without  her  assent  (d).  (1) 
[242]  Therefore  it  is  held  that  he  may  surrender  or  dispose  of  a 
term  which  was  vested  in  her  in  that  capacity,  and  such  surrender 
or  disposition  shall  be  binding  upon  her  (e).  So  a  gift,  or  release 
of  any  part  of  the  deceased's  personal  property  by  the  husband 
alone  shall  be  equally  available  (,/') ;  but  the  wife  has  no  right  to 
administer  without  the  husband  :  and  such  acts  as  have  been  just 
mentioned,  if  performed  by  her  without  his  concurrence,  will  be 
of  no  validity  (g).  In  case  of  the  husband's  death,  the  interest 
never  hating  been  divested,  shall  survive  to  her  ;  but  if  she  die, 
it  shall  not  survive  to  the  husband,  inasmuch  as  it  belonged  to  him 
merely  in  her  right,  as  representative  of  the  deceased  (h).  And 
although,  generally  speaking,  a  feme  covert  cannot  make  a  will 
without  the  assent  of  her  husband,  yet  without  his  assent  she  may 

(a)  Off.  Ex.  259.  Off.  Ex.  Suppl.  48.  Ankerslcin  v.  Clarke,  4  Term  Rep.  617. 
5  Co.  83.  Blackboroug-h  v.  Davis,  1  (e)  Thrustput  v.  Coppin,  Bl.  Rep, 
P.  Wins.  43.  vid.  Hudson  v.  Hudson,  1     801. 

Atk.  460.  and  Jacomb  v.  Harwood,  2  (/)  Yard  v.  Ellard,  Salk.  117.     Off 

Vez.  267.  and  infr.  Ex.  208. 

(b)  2  Fonbl.  387.                                  '  (g)  Wankford  v.   Wankford,    Salk. 
(r)   11  Yin.  Abr.  104,  105.     3  Bac.  306.     Off.  Ex.  207,   208.     Com.  Dig-. 

Abr.  13,  14.  Admon.  D.  vid.  supra,  9. 

(d)  Yardv.  Elaud,   Ld.  llaym.  369.  ,     (h)  Off.  Ex.  208.     Com.  Dig-.  Baron 

Com.  Dig-.  Admon.  I).     Wankford  v.  and  Feme,  F.  1.     Dy.  331. 
Wankford,  1  Salk.  306.     Off.  Ex.  199. 

(1)  Lindsay  v.  Lindsay**  JLdtn.,  1  Desaus.  Rep.  153. 


242  MARRIED  WOMAN  EXECUTRIX.  [BOOK  II. 

make  a  will,  and  continue  the  executorship  in  respect  to  the  pro- 
perty thus  vested  in  her  in  auter  droit  [i).  Hence  if  the  wife  of 
A.  have  debts  due  to  her  in  her  own  right,  and  be  also  executrix 
to  B.,  and  make  a  will  without  her  husband's  assent,  appointing 
an  executor,  the  will,  in  respect  to  the  goods  and  credits  which  be- 
longed to  her  as  the  executrix  of  B.,  shall  be  valid,  and  her  exe- 
cutor may  prove  it  in  opposition  to  the  husband.  But  as  to  the 
debts  due  to  her  in  her  private  capacity,  the  will  shall  be  void,  and 
[243]  the  husband  may  take  administration  :  she  shall  be  consider- 
ed as  dying  testate  in  regard  to  the  property  of  which  she  was  pos- 
sessed as  executrix,  and  as  intestate  in  regard  to  that  to  which  she 
was  entitled  in  her  own  right  [k). 

If  there  be  several  executors  or  administrators,  they  are  regard- 
ed in  the  light  of  an  individual  person*  They  have  a  joint  and  en- 
tire interest  in  the  testator's  effects,  which  is  incapable  of  being  di- 
vided (/),  and  in  case  of  death,  such  interest  shall  vest  in  the  sur- 
vivor (m). 

So  also  an  executor  of  an  executor,  in  however  remote  a  series, 
has  the  same  interest  in  the  goods  of  the  first  testator,  as  the  first 
and  immediate  executor  (n). 

An  administrator  de  bonis  non  has  also  the  same  interest  in  such 
of  the  effects  as  remain  unadministered,  as  was  vested  in  the  exe- 
cutor, or  antecedent  administrator. 

An  executor  de  son  tort  has  no  interest  whatever  in  the  proper- 
ty, and  therefore  can  maintain  no  action  in  right  of  the  deceas- 

ed(o).  (1)  ... 

[244], But  ii  the  executor  de  son  tort  take  out  administration, 
it  shall  to  most  purposes  qualify  the  wrong,  and  vest  the  same  in- 
terest in  him  as  in  other  administrators,  and  consequently  such  as 
shall  have  relation  to  the  time  of  the  intestate's  death  (p).  (2) 

(t)  2  Bl.  Com.  408.     Off.  Ex.   199.  259.     11  Yin.  Abr.  240.    4  Burn.  Eccl. 

3  Bac.  Abr.  10.     Off.  Ex.  Suppl.  20.  .  L.  273.     Shep.  Touchst.  464. 

(k)  Off.  Ex.  202.   -  (o)  11  Vin.  Abr.  215.  Parker  v.  Kitt, 

(/)  Com.  Dig.  Admon.  B.  12.     Dv.  12  Mod.  471,  472.    2  Bl.  Com.  507. 

23  b.    3  Bac.  Abr.  30.    Jacomb  v.  Har-  (p)  11  Vin.  Abr.  214— 217.    Parker 

wood,  2  Vez.  267.  and  vid.  infr.  v.   Kitt,   12  Mod.  471,  472.    Kenrick  v. 

(m)  6  Co.   36.     Dy.   160.     Eyre  v.  Burges,  Moore  126.  Pyne  v.  Woolland, 

Countess  of  Shaftsbury,  2  P.Wms.  121.  2  Ventr.  179.    3  Bac.  Abr.  25,  26.    Cur- 

vid.  supra,  37.  tis  v.  Vernon,  3  Term  Rep.  590.   Ibid. 

(7i)  Com.  Dig.  Admon.  G.     Off.  Ex.  2  H.  Bl.  26. 

£1)  Lee  v.  Wright,  1  Rawle's  Rep.  151.  Nor  be  cited  to  account  before  the 
Register.     Peeble's  Appeal,. \5  Serg.  &.  Rawle,  41. 

(2)  Shillaber  v.  Wyman,  Andreiv  v.  Gallison,  15  Mass.  Rep.  322.  325.  Rattoon 
v.  Ovcrackcr,  8  Johns',  Rep.  97.  2d  edit.     Contra,  Green  v.  Dcwit,  1  Root.  183. 


[     245     ] 


BOOK   III. 

OP  THE  POWERS  AND  DUTIES  OF  EXECUTORS  AND 
ADMINISTRATORS. 


CHAP.  I. 

OF    THE    FUNERAL — OF    MAKING    AN    INVENTORY OF   COLLECTING 

THE    EFFECTS. 


Sect.  I. 
Of  the  funeral. 


The  subject  now  leads  me  to  consider  the  powers  and  duties  of 
an  executor,  or  administrator  (a). 

And  first  he  is  to  bury  the  deceased  according  to  his  rank  and 
circumstances  (b).  It  has  been  already  stated,  that  an  executor, 
before  probate,  may  perform  this  pious  office  (c);  and  that  the  per- 
formance of  it  by  a  stranger  shall  not  constitute  him  an  executor 
de  son  tort  (d).  The  expences  attending  it  shall  be  allowed  in 
preference  to  all  debts  and  charges  (e) ;  (1)  but  the  executor  is  not 
justified  in  incurring  such  as  are  extravagant  (fj.  (2)     Nor  as 

(a)  8  Co.  136.  (e)  11  Vin.  Abr.  432.     Br.  Tit.  Exe- 

(6)  Offley  v.  Offley,  Free.  Chan.  27.  cutor,  pi.  172.     Dr.  and  Stud.  Dial.  2. 

Com.  Dig.  Admon.  C.   -  c.  10.                                  •, 

(c)  Supr.  46.  (/)  2  Bl.  Com.  508. 

(d)  Ibid.  40. 

(1)  By  the  14th  section  of  the  Act  of  19th  April,  1794,  (Purd.  Dig-.  376.  3  Sm. 
Laws,  132.)  executors  and  administrators  are  to  pay,  so  far  as  they  have  assets, 
the  debts  in  the  following-  order;  first,  physic,  funeral  expenses,  and  servants' 
wages;  second,  rents,  Sec. 

(2)  M'GUnsexfs  Appeal,  14  Serg.  Sc  Rawle,  64.  Meiz's  Appeal,  11  Serg.  & 
Rawle,  205.  And  the  Court  have  refused  to  allow  the  administrator  a  sum  of 
money  charged  against  the  estate  of  the  intestate  for  mourning  for  the  family, 
»s  against  those  of  the  next  of  kin  who  received  no  part  of  the  mourning. 
Flint  ham*  a  Appeal,  11  Serg.  &.  Rawle,  16.     See  also  Johnson  v.  Baker,  2  Carr.  fc 


246  '         OF  THE  INVENTORY.  [BOOK  III. 

[246]  against  creditors  shall  he  be  warranted  in  more  than  are  ab- 
solutely necessary.  In  strictness,  no  funeral  expences  are  allow- 
ed in  the  case  of  an  insolvent  estate,  except  for  the  coffin,  shroud, 
and  ringing  the  bell,  the  fees  of  the  parson,  clerk,  sexton,  and 
bearers;  but  not  for  the  pall,  or  ornaments  (g).  Still  less  shall 
charges  for  feasts  and  entertainments  be  admitted;  and  indeed  m 
any  case  they  seem  incongruous  to  so  mournful  an  occasion  (A). 
If  the  executor  neglect  the  observance  of  these  rules  he  will  be 
chargeable  with  a  species  of  devastation  or  waste  of  the  testator's 
property,  which  shall  be  prejudicial  only  to  himself,  and  not  to 
the  creditors,  or  legatees  (e). 

The  executor  must  also  prove  the  will;  or,  in  case  of  intestacy, 
the  next  of  kin  must  take  out  administration,  within  the  six  months 
limited  by  the  statute,  provided  they  respectively  act  (&). 

A  memorial  and  registry  are  also  required  by  different  acts  of 
parliament  (/)  of  all  wills  which  affect  any  lands  or  tenements  in 
the  county  of  York,  or  Middlesex,  excepting  copyhold  estates, 
leases  at  a  rack-jent,  or  leases  not  exceeding  twenty-one  years, 
[247]  where  the  actual  possession  accompanies  the  lease,  and  cham- 
bers in  Serjeant's  Inn,  the  Inns  of  Courts,  and  Inns  of  Chancery. 


Sect.  II. 

Of  the  making  of  an  inventory  by  the  executor,  or  adminis- 
trator. 

An  executor,  or  administrator,  before  he  administers,  except  by 
the  performance  of  such  acts  as  cannot  be  deferred,  as  disposing  of 
perishable  articles  (a),  is  likewise  bound,  pursuant  to  the  stat.  21  H. 
8.  c.  5.  (1)  passed  in  affirmance  of  the  ecclesiastical  law,  to  make 

(«■)  Shilleg's  case,  Salk.  296.     L.  of  (k)  Vid.  supr.  43.  65.  96. 

Ni.  Pri.  143.  4  Burn.  Eccl.  L.  301.   Off.  (/)  Stat.  2  and  3  Ann.  c.  4.    6  Ann. 

Ex.  174.    Greenside  v.  Benson,  3  Atk.  c.  35.  7  Ann.  c.  20.  8  Geo.  2.  c.  6.  vid. 

249.     3  Bac.  Abr.  85.  2  Bl.  Com.  343. 

(A)  Off.  Ex.  131.  («)  4  Bum.  Eccl.  L.   250.     Swinb. 

(i).  2  Bl.  C<jli.  508.     Godolph.  p.  2.  p.  6.  s.  8. 
c.  26.  s.2. 

Payne's  Rep.  207.  This  case,  though  of  general  application  and  sonic  import- 
ance, has  been  omitted  by  the  Editors  of  the  English  Common  Law  Reports,  in 
preparing'  tlic  12th  volume  of  that  publication. 

(1)  That  part  only  of  the  stat.  21  H.  8.  c.  5.  is  in  force  in  Pennsylvania,  which 
relates  to  the  persons  to  whom  administration  is  to  be  granted,  (3  Binu.  618.  i»V 
hcrts'  Dig".  250.)  The  practice,  however,  has  always  been  for  the  executor  to 
file  an  inventory,  and  appraisement  of  the  personal  estate  of  the  testator,  accord- 
ing to  the  course  pointed  out  in  the  te.\t,  though  there  is  no  provision  in  any  aei 
of  Assembly  requiring  an  executor  solo  do,  except  in  the  cases  set  forth  in  the  1st 
sect,  of  27th  March,  1713,   (Purd.  Dig.  610.   1  Dall.  Laws,  98.  1  Sm.  Laws,  81,) 


CHAP.   I.]  OF  THE  INVENTORY.  198 

an  inventory  of  the  deceased's  personal  estate  and  effects,  in  the 
presence  of  at  least  two  of  his  creditors,  or  legatees,  or  next  of 
kin:  and  in  their  default,  or  absence,  of  two  other  honest  persons; 
and  the  same  shall  cause  to  be  indented,  of  which  one  part  shall 
be  delivered  in  to  the  ordinary  upon  oath,  and  the  other  part  shall 
remain  in  the  possession  of  such  executor,  or  administrator.  And 
the  ordinary  shall  not,  under  the  penalty  of  ten  pounds,  refuse 
to  take  such  inventory,  when  so  presented  to  him  (b).  Also,  by 
[348]  the  stat.  22  &  23  Car.  2.  c.  10.  as  hath  been  before  men- 
tioned (c),  an  administrator  must  enter  into  a  bond,  with  two  or 
more  securities,  conditioned,  among  other  things,  for  his  exhibiting 
into  the  registry  of  the  court,  at  or  before  a  day  specified,  a  true 
and  perfect  inventory  of  the  goods,  chattels,  and  credits  of  the 
deceased  come  to  his  possession  (d).  (1) 

An  inventory  is  thus  required  for  the  benefit  of  creditors,  and 
legatees,  or  parties  in  distribution  (e).  It  must  be  written  or  en- 
grossed on  paper  or  parchment  duly  stamped  (J*).  It  is  to  con- 
tain a  full,  true  and  perfect  description  and  estimate  of  all  the  chat- 
tels, real  and  personal,  in  possession  and  in  action,  to  which  the  ex- 
ecutor or  administrator  is  entitled  in  that  character,  as  distinguish- 
ed from  the  heir,  the  widow,  and  the  donee  mortis  causci  of  the 
testator,  or  intestate  (g).  It  must  also  distinguish  such  debts  as 
are  sperate,  and  those  which  are  doubtful,  or  desperate  (h).  By 
the  executor  it  must  be  exhibited  within  a  competent  time  :  what 
shall  be  so  considered,  depends  on  the  discretion  of  the  ordinary, 
regulated  by  the  distance  at  which  the  goods  lie  from  the  residence 
of  the  executor,  and  other  circumstances  (i).  An  administrator  is 
[249]  bound  pursuant  to  the  stat.  of  Car.  2.  to  exhibit  his  inven- 
tory before  the  ordinary  by  the  time  specified  in  the  condition  of 
the  bond,  and  must  do  so  at  his  peril  (k).  (2) 

(b)  3  Bac.  Abr.  45.     4  Burn.   Eccl.     4  Burn.  Eccl.  L.  253,  254. 

L.  251.  (h)  4  Burn.  Eccl.  L.  254.     3  Bac. 

(c)  Supr.  97.  Abr.  47.     L.  of  N.  P.  140. 

(d)  3  Bac.  Abr.  46.  11  Vin.  Abr.  358.  («')  3  Bac.  Abr.  47.  Swinb.  p.  6.  s.  8. 

(e)  3  Bac.  Abr.  45.   Swinb.  p.  6.  s.  6.  4  Burn.  Eccl.  L.  265. 

(/)  Vid.  Append.  ■  (k)  3  Bac.  Abr.  47.     Archbishop  of 

■  (g)  2  Bl.  Com.  510.  3  Bac.  Abr.  47.     Canterbuiy  v.  Wills,  Salk.  251. 

(1)  In  Pennsylvania  the  register  is  bound,  upon  granting  administration  of  the 
goods  and  chattels  of  persons  dying  intestate,  to  take  bonds  conditioned  for  ma- 
king a  true  and  perfect  inventory  of  the  goods  of  the  deceased,  which  have  or 
shall  come  to  his  hands,  possession,  or  knowledge,  with  two  or  more  sufficient 
sureties,  (Act  of  19th  April,  1794.  Purd.  Dig.  373.  3  Ball.  Laws,  521.  3  Sm. 
143.)  And  by  the  second  section  of  the  act  of  27th  March,  1713,  (Purd.  Dig. 
611.  1  Dall.  Laws,  98.  1  Sm.  Laws,  81,)  "Where  any  letters  of  administra- 
tion shall  be  granted,  and  no  bond  with  sureties  given,  as  the  law  in  that  case  re- 
quires, such  letters  of  administration  shall  be  void,  and  of  none  effect;  and  the 
officer  or  person  that  grants  the  same,  and  his  sureties,  shall  be,  ipso  facto,  liable 
to  pay  all  such  damages  as  shall  accrue  to  any  person  or  persons  by  occasion  of 
granting'  such  administration." 

(2)  The  inventory,  by  the  first  section  of  the  act  of  19th  .ipnl,  1794,  must  he 


249  OF  THE  INVENTORY.  [BOOK  III, 

And  the  judge  has  authority  to  cite  or  summon  either  of  them 
for  such  a  purpose,  not  only  at  the  suit  of  a  party,  but  at  his  own 
discretion  (k)  ;  and  if  they  neglect  bringing  in  the  inventory,  to 
pronounce  them  contumacious  (/). 

In  point  of  law,  nevertheless,  it  is  the  duty  both  of  an  executor 
and  an  administrator,  of  their  own  accord  (m),  to  exhibit  an  inven- 
tory ;  the  former  within  a  reasonable  time,  the  latter  at  the  time 
limited  by  the  condition  of  the  administration  bond.  And  the 
courts  formerly  considered  the  neglect  of  this  duty  in  a  light  unfa- 
vourable to  the  party,  especially  where  there  was  a  deficiency  of 
assets  :  and  although  not  conclusive  against  him,  yet  as  exposing 
him  to  imputation;  and  that  the  omission  was  the  less  to  be  excused, 
since  neither  at  law  nor  in  equity  is  the  inventory  final  ;  it  is  per- 
mitted him  to  shew  that  the  assets  come  to  his  hands  amount,  from 
unforeseen  circumstances,  to  less  than  he  may  have  originally  stat- 
ed them(n).  But  although  such  be  the  legal  obligation  imposed 
on  an  executor  or  administrator,  in  every  case,  to  produce  an  in- 
ventory, yet  the  practice  of  the  spiritual  courts  seems  in  this  point 
to  have  been  gradually  relaxing  :  at  one  period  it  appears  to  have 
[250]  been  usual  for  the  executor,  or  administrator,  after  probate, 
or  administration,  to  exhibit  an  inventory,  which  was  considered 
as  authenticated  by  the  general  oath  he  had  taken  for  the  due  exe- 
cution of  the  will,  or  administration  of  the  effects,  and  for  exhib- 
iting a  true  inventory.  Yet  then  he  was  liable  to  be  called  upon 
to  exhibit  a  farther  inventory  on  his  special  oath,  at  the  suit  of  a 
party  interested  (o).  But  according  to  the  practice  which  at  pre- 
sent prevails,  neither  the  executor,  nor  administrator,  in  general 
cases,  exhibits  any  inventory  whatsoever,  unless  he  be  cited  for 
that  purpose  in  the  spiritual  court  at  the  suit  of  a  creditor  or  lega- 
tee, or  part}'  in  distribution  {p)  ;  and  in  that  case  he  is  bound  to 
exhibit  an  inventory  and  account  {q)  ;  and  his  former  general  oath 
will  not  be  sufficient  ;  but  the  inventory  thus  exhibited  must  be 
verified  by  a  special  oath,  eitlier  personally,  or  by  virtue  of  a  com- 
mission (r).  The  court  however  may  exercise  a  discretion  as  to 
the  sort  of  inventory  it  will  accept,  particularly  in  complicated 
cases  (s). 

(k)  Com.  Dig.  Admon.  B.  7.  4  Burn.  (o)  4  Burn.  Eccl.  L.  250.  265,  266. 

Eccl.  L.   250.  265.     Sed  vid.  Petit  v.  1  Ought.  344. 

Smith,  5  Mod.  247.  (/>)  Ex  relat. 

(/)   Griffiths  v.  Bennett,  2  Phill.  364.  (g)  Phillips  v.  Bignell,  1  Phill.  Rep. 

(to)  Stat.  21  Hen.  8.  c.  5.   Archbish-  239.       Mvddleton    v.     Rushout,    ibid, 

op  of  Canterbury  v.  Wells,  1  Salk.  251.  224. 

(n)    4    Burn.  Eccl.  L.  252.     Orr  v.  (r)  4  Burn.  Eccl.  L.  266. 

Kaines,  2  Ves.  193.  (s)  Reeves  v.  Freeling,  2  Phill.  56. 


furnished  within  one  month,  and  the  administrator  must  settle  his  accounts  with- 
in one  year.  And  the  bond  of  the  administrator  is  forfeited  unless  there  be  a 
literal  compliance  with  the  words  of  the  act.  Comm.  v.  Bryan,  8  Serg.  &  Rawle, 
128.     Campbell,  Register,  &c.  v.  Jdcork,  stated  8  Serg.  &.  Rawle,  132. 


CHAP.    I.]  OF  THE  INVENTORY.  250 

It  is,  however,  the  part  of  a  prudent  person,  who  sustains  this 
office,  in  every  case  to  see  that  the  effects  are  carefully  appraised, 
and  reduced  into  an  inventory,  not  only  because  he  may  be  cited 
hereafter  to  produce  it,  but  also  because  a  distinct  and  accurate 
knowledge  of  the  fund  is  necessary,  as  will  more  clearly  appear 
from  the  sequel  of  this  work,  to  direct  him  in  the  safe  execution 
of  the  trust.  Indeed,  if  a  party  administer  without  making  an 
[251]  inventory,  the  law  will  suppose  him  to  have  assets  for  the 
payment  of  all  the  debts  and  legacies,  unless  he  repel  the  presump- 
•  tion  ;  (1)  whereas  if  he  make  an  inventory,  he  shall  not  be  pre- 
sumed to  have  more  effects  of  the  deceased  than  are  comprised 
within  it,  and  the  proof  of  any  omission  is  then  thrown  on  the 
opposite  party  (s). 

But  it  is  not  necessary,  according -to  the  modern,  practice,  that 
the  appraisement  and  inventory  should  be  made  exactly  pursuant 
to  the  letter  of  the  statute.  If  the  effects  appear  to  have  been  ap- 
praised fairly,  and  by  persons  of  repute,  and  reduced  into  an  in- 
ventory, such  inventory  shall  obtain  credence,  unless  it  be  falsified 
by  the  adverse  party  (7).  And  an  inventory  may  be  dispensed 
with  altogether,  if  it  shall  appear  clearly  to  the  court  to  be  unne- 
cessary (u).  As,  where  A.  died  possessed  of  a  large  personal  es- 
tate, and  appointed  his  eldest  son  executor;  and,  among  other  be- 
quests, gave  his  second  son  two  thousand  pounds,  to  be  paid  at 
three  several  payments  :  the  second  son  cited  his  elder  brother  be- 
fore the  judge  of  the  prerogative  court  where  the  will  was  proved, 
in  order  to  compel  him  to  bring  in  an  inventory;  but  it  appearing 
that  the  two  first  payments  had  been  made,  and  the  third  had  been 
tendered,  the  judge  decided,  that  there  was  no  need  of  an  inven- 
[252]  tory  at  the  instance  of  the  plaintiff;  and  the  sentence  was 
affirmed  by  the  delegates,  first  on  appeal,  and  afterwards  on  a  com- 
mission of  review  (v). 

On  the  other  hand,  the  judge  will,  in  special  cases,  at  the  in- 
stance of  a  party  interested,  decree  an  inventory  to  be  exhibited 
by  the  executor,  or  administrator,  before  the  issuing  of  the  probate, 
or  letters  of  administration,  under  seal  ;  and  such  inventory  must 
also  be  substantiated  by  a  special  oath  (iv~).  Also,  under  particular 
circumstances,  before  the  granting  of  the  probate,  or  letters  of  ad- 
ministration, the  court  will,  on  the  petition  of  a  party  interested, 
instead  of  requiring  such  inventory,  issue  a  commission  for  the  ap- 
praisement and  valuation  of  the  goods,  rights,  and  credits,  and  in- 
spection of  the  bonds,  leases,  and  other  writings  relative  to  the  per- 
sonal estate  of  the  deceased,  at  bis  house,  or  elsewhere,  ofi  the  day 

(s)  4  Burn.  Eccl.  L.  265,  266.  Swinb.         (v)  Boone's  case,  Raym.  470. 
p.  6.  s.  6.  (w)  4  Eurn.  Eccl.  L.  266.    1  Ought. 

(/)  Ibid.  1  Ought.  344.  344. 
(u)  Ibid.  265. 

(1)    Leeke's  Jidm.  v.  Beanai,  3  Harr.  &.  Johns.  373,  rontrn. 
21 


252  OF  THE  INVENTORY.  [BOOK  III. 

specified,  with  such  continuation  of  time  and  place  as  may  be  ne- 
cessary (#). 

In  cases  of  this  nature  there  also  usually  issues  a  monition  to 
the  other  party  in  special,  and  to  all  others  in  general,  with  whom 
any  of  such  effects  of  the  deceased  remain,  requiring  them  to  ex- 
hibit the  same  to  the  appraisers  under  such  commission,  at  the  time 
[253]  and  place  appointed  for  its  execution,  in  order  that  they  may 
be  appraised  and  inserted  in  the  inventory  (y). 

And  on  such  commission  being  duly  executed,  the  inventory 
shall  be  brought  in  and  exhibited,  signed  by  the  hands  of  the  ap- 
praisers, or  two  of  them  at  the  least,  but  without  the  oath  of  the 
party  (*). 

In  such  case,  also,  an  inventory  is  often  required  on  the  execu- 
tor's or  administrator's  oath,  of  such  goods  of  the  deceased  as 
have  been  already  disposed  of  (a).  But  after  an  inventory  is  ex- 
hibited, a  creditor  cannot  impeach  it  in  the  ecclesiastical  court  ;  for 
the  stat.  21  Hen.  8.  which  requires  an  executor  or  administrator 
to  make  an  inventory,  enjoins  him  only  to  deliver  it  on  oath  into 
the  keeping  of  the  ordinary  ;  and  the  ordinary  is  bound  to  receive 
the  same  on  its  being  so  presented  (5). 

Yet  a  creditor  may  state  objections  to  the  inventory,  which  the 
party  is  bound  to  answer  upon  oath;  but  no  evidence  is  admissible 
to  contradict  the  answer.  If  the  creditor  be  still  dissatisfied,  he 
may  have  recourse  to  equity  for  more  effectual  relief  (c).  But 
where  a  creditor  gave  in  an  allegation,  pleading  an  omission  in  the 
inventory,  to  which  the  executrix  put  in  a  declaration  instead  of 
a  specific  answer,  the  court  held  that  such  creditor  was  entitled  to 
have  a  constat  of  the  assets  that  had  come  to  her  hands;  and  ad- 
mitted the  allegation  (d). 

[254]  By  the  custom  of  London,  if  any  man,  or  woman,  free 
of  the  city,  die  leaving  an  orphan  within  age,  and  not  married, 
the  mayor  and  aldermen  may  compel  the  executor,  or  administra- 
tor, to  appear  at  a  court  of  orphanage,  and  exhibit  an  inventory. 
And  in  case  any  debt  appear  to  be  outstanding,  to  give  security  to 
the  chamberlain  to  render  upon  oath  a  true  account  of  the  same 
when  received;  and  on  his  refusal  may  commit  him  till  compli- 
ance. Nor  shall  his  having  given  security  to  the  spiritual  court, 
as  above-mentioned,  release  him  from  the  obligation  of  the  cus- 
tom (e). 

(.r)  4  Burn.  Eccl.  L.  266.  1  Ought,  v.  Ovington,  Burr.  1922.  fiirtton  v. 
344.  Parker,    8  Mod.    168.     2  Fonbl.    418. 

(y)  4  Burn.  Eccl.  L.  266.  1  Ought,     note  (d). 

344,  345.  (C)  2  Fonb.  418.  note  (d). 

(z)  4  Burn.  Eccl.  L.  267.  1  Ought.          (d)  Barclay  v.  Marshall,  2  Phill.  Rep. 

.345.  188. 

(a)  4  Burn.  Eccl.  L.  267.  1  Ought.         (e)  Com.   Dig.    Guardian,   G.  1.      1 

345.  Roll.  Abr.  550.    Luck's  case,  Hob.  247. 
(h)  4  Burn.  Eccl.  L.  267.  Catchside 


CHAP.   1.]  OF  COLLECTING  THE  EFFECTS.  254 

Sect.  III. 
Of  his  collecting  the  effects. 

The  next  duty  of  the  executor,  or  administrator,  is  to  collect  all 
the  goods  and  chattels  so  inventoried.  For  that  purpose,  the  law 
invests  hiin  with  large  powers,  and  authority.  As  representative 
of  the  deceased,  we  have  seen,  he  has  the  same  property  in  the 
effects  as  the  principal  had  when  living;  he  has  also  the  same  rc- 
[255]  medics  to  recover  them  («).  Within  a  convenient  time  af- 
ter the  testator's  death,  or  the  grant  of  administration,  he  has  a 
right  to  enter  the  house  descended  to  the  heir,  In  order  to  remove 
the  goods  {b),  provided  he  do  so  without  violence;  as,  if  the  door 
be  open,  or  at  least  the  key  be  in  the  door;  and,  although  the  door 
of  entrance  into  the  hall  and  parlour  be  open,  he  cannot  therefore 
justify  forcing  the  door  of  any  chamber  to  take  the  goods  contain- 
ed in  it;  but  is  empowered  to  take  those  only  which  are  in  such 
rooms  as  are  unlocked,  or  in  the  door  of  which  he  shall  find  the 
key.  He  has,  also,  a  right  to  take  deeds  and  other  writings  rela- 
tive to  the  personal  estate  out  of  a  chest  in  the  house,  if  it  be  un- 
locked, or  the  key  be  in  it;  but  he  has  no  right  to  break  open  even 
a  chest.  If  he  cannot  take  possession  of  the  effects  without  force, 
he  must  desist,  and  resort  to  his  action  (c).  On  the  other  hand, 
if  the  executor  or  administrator  on  his  part  be  remiss  in  removing 
the  goods  within  a  reasonable  time,  the  heir  may  distrain  them  as 
damage  feasant  (d). 

The  executor  has  also  a  right,  on  producing  the  probate  at  the 
bank,  and  causing  so  much. of  it  as  relates  to  the  testator's  interests 
[256]  in  the  several  stocks  to  be  entered  in  the  proper  offices  ac- 
cording to  the  acts  of  parliament  which  regulate  this  species  of  pro- 
perty, to  have  the  same  transferred  from  the  testator's  name  into 
liis  own,  or  to  such  person  as  he  shall  appoint;  and  even  in  the 
case  Of  a  specific  bequest  of  stock,  the  executor  is  entitled  to  call 
upon  the  bank  for  a  transfer,  and  on  their  refusal,  they  are  subject 
to  an  action  at  his  suit.  It  is  personal  property,  and  subject  to  all 
its  incidents  (e).  The  administrator  has  the  same  right  on  produc- 
ing the  letters  of  administration. 

The  executor  or  administrator  has  likewise  authority  to  sell  or 
dispose  of  the  deceased's  effects,  and  convert  them  into  ready  mo- 
ney, to  answer  the  purposes  of  the  trust  (f). 

(a)  2  Bl.  Com.  510.     Ilarg.  Co.  Lit.  (e)  See  stat.   5  Wm.  &  Mary,  c.  20. 

'209.  The  Bank  of  England  v.  Moffat,  3  Bro. 

(6)  Vid.  Harg.   Co.  Litt.  56  b.;  and  Cli.  Hep.  260.     Vid.  also  Oougl.  524. 

supr.  46.  (/)  2  Bl.  Com.  510.     11  Vin.  Abr. 

(c)  Off.Ex.  92,93.  11  Yin.  Abr. 267.  270.  Humble  v.  Bill,  2  Vern.  445.  \ 
Shep.  Touchst.  470.  Bro.  P.  C.  71.    Paget  v.  Hosk'ms,  Gilb. 

(d)  Off.  Ex.  91.  Plowd.  280,  281.  Rep.  Eq.  11.1.  Nugent  v.  Gifford,  1 
vid.  Stodden  v.  Harvey,  Cro.  J ac.  204.  Atk.  463.  WliaWv.*Eooth,  4  Term. 
and  Harg.  Co.  Lit.  56  b  liep.  625.  in  note       • 


256  OF  COLLECTING  THE  EFFECTS.  [BOOK  III. 

He  has  power  to  sell  (g),  or,  as  it  has  been  held,  to  mortgage 
terms  of  years,  or  assign  mortgaged  terms  (h),  and  to  dispose  of 
any  of  the  effects,  although,  as  it  seems,  specifically  given  by  the 
will  (£),  and  even  in  satisfaction  of  his  own  private  debt  (k).  (1) 
Nor  when  he  has  aliened  the  assets  can  a  creditor  follow  them  at 
law;  (2)  for  the  demand  of  a  creditor  is  only  a  personal  demand 
[257]  against  the  executor  in  respect  of  the  assets  come  to  his 
hands,  but  no  lien  on  the  assets.  Equity  will,  indeed,  follow  as- 
sets on  voluntary  alienations  by  collusion  with  the  executor ;  but 
if  the  alienation  or  pledge  be  for  a  valuable  consideration,  unless 
fraud  be  proved,  neither  law  nor  equity  will  defeat  it;  (3)  for  a  pur- 
chaser from  an  executor  has  no  means  of  knowing  the  debts  of  the 
testator;  and  if  a  court  of  equity  on  the  subsequent  appearance  of 
debts  would  controul  such  purchasers,  all  dealings  with  executors 
would  be  dangerous  (/). 

An  executor  is  entitled  to  recover  by  action,  or  other  legal  re- 
medies, or  by  suit  in  equity,  whatever  pertains  to  such  personal 
estate  (m). 

He  is  also  empowered  to  redeem  such  chattels  as  the  deceased 
may  have  left  in  pledge  (n). 

Temporary  administrators,  as  an  administrator  durante  absenlio, 
or  durante  minoritate,  or  pendente  lite,  have  not,  as  we  shall 
hereafter  see,  so  unlimited  an  authority  to  sell  or  alienate  the  tes- 
tator's property.  They  may  dispose  bona  perittrra  from  necessity, 
and  to  prevent  an  irreparable  loss  to  the  estate;  and  on  the  same 
principle  they  may  maintain  actions  to  recover  the  debts  of  the  de- 
ceased (o).  But  where  the  widow  of  an  intestate  delivered  goods 
back  to  a  creditor  in  satisfaction  of  his  demand,  in  an  action  of 
trover  by  the  lawful  administrator,  it  was  held,  that  such  creditor 
could  not  protect  his  possession,  upon  the  ground  of  such  delivery 
having  been  made  by  one,  who  had  by  such  intermeddling  made 
herself  executrix  de  son  tort ;  no  fact  appearing  to  give  colour  to 

(g)  Ewer  v.  Corbett,  2  P.  Wms.  148.  comb  v.  Ilarwood,  2  Vez.  265.      Ewer 

Burting  v.  Stonard,  ib.  150.     Barnard,  v.  Corbett,  2  P.  Wms.  149.  note  2.  vid. 

78.     Elliot  v.  Merriman,  2  Atk.  41.    Ja-  2  Bro.  Ch.  Rep.  431. 

comb  v.  Ilarwood,  2  Vez.  265.  (/)  Nugent  v.   Gifford,    1  Atk.  46.3. 

(h)  Nugent  v.  Gifford,  1  Atk.  463 .  Mead  v.  Ld.  Orrery,  3  Atk.  237.    Crane 

Mead  v.  Ld.  Orrery,  3  Atk.  235.  sed  v.   Drake,   2  Vern.    616.      M'Leod  v. 

vid.  Bonny  v.  Ridgard,  cited  2  Bro.  Ch.  Drummond,  14  Ves.  jun.  353.;  and  S.  C. 

Rep.  438.  17  Ves.  jun.  152. 

(i)  Ewer  v.  Corbett,  2  P.  Wms.  148.  (•/»)  Vid.  supr.  157. 

vid.  2  Bro.  Ch.  Rep.  431.  .    (n)  Vid.  supr.  164. 

(k)  Nugent  v.  Gifford,  1   Atk.  463.  (o)  Vid.  supr.  404.   and  Walker  v. 

Mead  v.  Ld.  Orrery,  3  Atk.  235.     Ja-  Woollaston,  2  P.  Wms.  584. 

(1)  Contra,  Graff  v.  Castle?nan  et  at.,  5  Rand.  Rep.  195.  Dodaon  v.  Simpson, 
2  Rand.  Rep.  294.  And  see  Field  v.  Schieffelin,  7  Johns.  Rep.  157.  Petrie  v. 
Clark,  11  Serg.  &  Rawle,  377. 

(2)  11  Serg.  &  Rawle,  385. 

(3)  Knight  x^Yarborot'gb,  4  Rand.  Rep.  567.  Sutherland  \.  Brush,  7  Johns. 
Cha.  Rep.  17.      ##  " 


CHAP.  II.]         OF  DEBTS  DUE  TO  THE  CROWN.  258 

her  having  acted  in  that  respect  in  the  character  of  executrix,  ex- 
cept the  single  act  of  wrong  complained  of,  in  which  the  defendant 
participated  (p). 

(p)  Mountford    v.    Gibson,   4  East.  441. 


[258]     CHAP.  II. 

OF  HIS  PAYMENT  OF  DEBTS  IN  THEIR  LEGAL  ORDEH. 


Sect.  I. 

Of  debts  due  to  the  crown  by  record,  or  specialty. 
Of  certain  debts  by  particular  statutes. 

The  disposition  of  the  property  when  thus  collected,  and  which 
constitutes  assets,  is  next  to  be  discussed.  And,  first,- 1  shall  treat 
of  the  application  of  the  assets  in  the  order  prescribed  by  law. 
He  must,  in  the  first  place,  pay  all  funeral  charges,  and  the  ex- 
pences  of  proving  the  will,  or  of  taking  out  letters  of  administra- 
tion (a).  Secondly,  he  must  pay  the  debts  of  the  deceased,  and 
in  such  payment  he  must  be  careful  to  observe  the  rules  of  priority; 
for,  if  he  pay  those  of  a  lower  degree  first,  on  a  deficiency  of  as- 
sets he  must  answer  those  of  a  higher  out  of  his  own  estate  (b).  (I) 

(a)  2B1.  Com.  511.  Off.  Ex.  130,  131.         (b)  2  Bl.Com.  511.  Shep.  Touchst. 


(1)  "All  debts  owing-  by  any  person  within  this  state,  at  the  time  of  his  or 
her  decease,  shall  be  paid  by  his  or  her  executors  or  administrators,  so  far  as  they 
have  assets,  in  the  manner  and  order  following-;  first,  physic,  funeral  expenses, 
and  servants'  wages;  second,  rents,  not  exceeding-  one  year;  third,  judgments; 
fourth,  recognizances;  fifth,  bonds  and  specialties;  and  all  other  debts  shall  be 
paid  without  regard  to  the  quality  of  the  same,  except  debts  due  to  the  Com- 
monwealth, which  shall  be  last  paid;  but  if  there  shall  not  be  assets  enough  to 
discharge  and  pay  such  bond  and  specialties  and  other  debts,  then,  and  in  such 
case,  the  same  shall  be  averaged,  and  the  said  creditors  paid  prorata,  or  an  equal 
sum  and  proportion  in  the  pound,  so  far  as  the  assets  will  extend,  first  paying  the 
bonds  and  specialties  aforesaid;  for  which  purpose  the  executors  or  administra- 
tors of  such  deceased  person  shall  or  may  apply  to  the  Orphans'  Court  of  the 
proper  county,  which  is  hereby  empowered  to  appoint  three  or  more  auditors, 
to  settle  and  adjust  the  rates  and  proportions  of  the  remaining  assets  due  and  pay- 
able to  such  respective  creditors  accordingly:  Provided,  nevertheless,  That  no  cre- 
ditor who  shall  neglect  to  exhibit  his  account  to  the  executors  or  administrators, 
within  twelve  months  after  public  notice  given  in  one  or  more  of  the  public  news- 
papers published  in  this  state,  and  continued  in  such  public  newspapers  for  four 
weeks,  shall  be  entitled  to  receive  any  dividend  of  such  remainining-  assets."  Act 
of  19th  April,  179 i.  s.  14.  (Purd.  Dig.  376.  3  Dall.  Laws,  521.  3  Sm.  Laws,  143.') 

Under  this  act  it  has  been  decided,  that  the  order  of  pa\  ment  of  the  debts  due 


258  OF  DEBTS  DUE  TO  THE  CROWN.         [BOOK  III. 

But  if  there  be  a  sufficiency  of  assets  for  payment  of  debts,  he  may 
pay  simple  contract  debts  not  bearing  interest  before  specialty  debts 
bearing  interest,  if  not  objected  to  by  the  specialty  creditors,  and 
the  legatees  are  not  at  liberty  to  complain  of  the  order  of  payment 
[259]  (b).  The  more  clearly  to  trace  the  order  which  the  law 
prescribes  for  the  payment  of  debts,  and  which  the  executor,  or 
administrator,  is  thus  bound  at  his  peril  to  observe,  it  is  necessary 
to  consider  them  under  a  variety  of  classes. 

They  are  distinguished,  then,  first,  into  debts  due  to  the  crown 
by  record,  or  specialty:  secondly,  certain  debts  created  by  parti- 
cular statutes:  thirdly,  debts  of  record  in  general:  fourthly,  debts 
due  by  specialty:  fifthly,  debts  due  by  simple  contract,  first,  to 
the  king;  and,  secondly,  to  a  subject. 

To  all  other  debts,  of  whatever  nature,  as  well  of  a  prior  as  of  a 
subsequent  date,  such  as  are  due  to  the  crown  by  record  or  specialty 
claim  the  precedence  (c).  (1) 

(i)  Turner  v.  Turner,  1  Jac.  &,  Walk.  Of]'.  Ex.  133.  Littleton  v.  Hibbins,  Cro. 
Rep.  39.  Eliz.  793.   Com.  Dig-.  Admon.  C.  2.  Er- 

(c)  11  Vin.  Abr.  295.  5  Bac.  Abr.  79.     by  v.  Erby,  1  Salk/80. 


by  a  decedent  is  according'  to  tbe  nature  of  the  debt  at  the  time  of  his  decease, 
which  nature  is  not  changed  by  obtaining'  a  judgment  against  his  executor  or  ad- 
ministrator. JVootcring  v.  Stewards  Mm.  2  Ycates,  483.  JPrevost  v.  Nicholk,  4 
Yeates,  479.     Scott  v.  Ramsay,  1  Binn.  221. 

"  Physic"  includes  medical  services  rendered  to  the  decedent,  or  his  family, 
and  for  which  in  his  lifetime  he  was  liable,  and  is  not  confined  to  those  rendered 
in  the  last  illness  of  the  decedent  himself.  Bond's  Case,  Orph.  Ct.  Phila.  Count)'. 
MS.  Ilallowcll,  Prest.  diss.  Rouse  v.  Ebontz's  ^m.-Sup.  Court  MS.  1828.  Lan- 
caster. 

Under  the  description  of  "  Servants,"  those  persons  only  are  included  who 
form  part  of  a  family,  and  are  employed  to  assist  in  the  economy  of  the  house,  or 
its  appurtenances,  and  not  labourers  or  workmen.  Ex  parte  Meason,  5  Binn.  167. 
A  bar-keeper  in  a  tavern  has  been  held  to  be  a  "  servant"  within  the  meaning  of 
the  act.     Bonifuce  v.  Scott,  3  Serg.  &  liawle,  351. 

(1)  The  fijth  section  of  Act  of  Congress  of  March  3d,  1797,  {TngersoWs  Abr. 
561.  Pamph.  Laws,  vol.  3.  p.  423.)  entitled,  "  An  act  to  provide  more  effectually 
for  the  settlement  of  accounts  between  the  United  States  and  receivers  of  public 
money,"  provides,  "  that  where  any  revenue  officer,  or  other  person  hereafter 
becoming  indebted  to  the  United  States  by  bond  or  otherwise,  shall  become  in- 
solvent, or  w'here  the  estate  of  any  deceased  debtor  in  the  hands  of  executors  or 
administrators  shall  be  insufficient  to  pay  all  the  debts  due  to  the  lTni(cd  States, 
the  debt  due  to  the  United  Stales  shall  be  first  satisfied."  And  the  duty  act  of  the 
2d  March,  1799,  c.  128.  s.  65.  (lag.  Abr.  156.  Pamph.  Laws,  vol.  4.  p.  386.)  pro- 
vides, "  that  in  all  cases  of  insolvency,  or  where  the  estate  in  the  hands  of  execu- 
tors or  administrators  or  assignees  shall  be  insufficient  to  pay  all  the  debts  due 
from  the  deceased,  the  debt  or  debts  due  the  United  States  on  any  such  bond, 
or  bonds,  shall  be  lir,t  satisfied  ;  and  any  executor,  administrator,  or  assignee,  or 
other  person,  who  shall  pay  any  such  debt  due  by  the  person  or  estate  for  w  horn 
or  for  which  they  arc  acting,  previous  to  the  debt  or  debts  due  to  the  United  States 
from  such  person  Or  estate  being  first  duly  satisfied  and  paid,  shall  become  an- 
swerable, in  their  own  person  or  estate,  for  the  debt  or  debts  so  due  to  the  United 
States,  or  so  much  thereof  as  may  remain  due  and  unpaid,  in  the  proper  Court 
having  cognizance  thereof"  And,  "  that  if  the  principal  in  any- bond  which  shall 
be  given  to  the  United  Sttties  for  duties  on  goods,  wares,  or  merchandize  import 


CHAP.   II.]  OF  DEBTS  DUE  TO  THE  CROWX.  259 

Debts  secured  to  the  king  by  specialty  are  of  the  same  degree 
with  those  of  record:  for  by  the  stat.  33  //.  8.  c.  39.  it  is  enacted, 
that  all  obligations  and  specialties  taken  to  the  use  of  the  king, 
shall  be  of  the  same  nature  as  a  statute  staple  (d).  The  king,  by 
his  prerogative,  is  to  be  preferred  before  other  creditors,  inasmuch 
as  the  law  regards  the  royal  revenue  as  of  more  importance  than 
[260]  any  private  interest  (e).  Therefore,  an  executor,-  whose  testa- 
tor was  indebted  by  matter  of  record  to  the  king,  may  plead  to  an 
action  brought  by  a  judgment  creditor,  or  any  other  creditor,  that 
the  testator  died  thus  indebted  to  the  crown,  and  hath  not  left  assets 
more  than  to  satisfy  the  same,  and  such  plea  shall  be  valid;  but 
the  defendant  must  shew  the  recdrd  in  certain  (/).  So  if  the  cre- 
ditor proceed  to  sue  out  execution  on  a  statute-merchant,  or  staple, 
the  executor,  on  setting  forth  this  matter,   will  be  relieved  on  an 

(d)  Off.  Ex.  134.  (/)  Off.  Ex.  134.  Com.  Dig1.  Admon. 

(e)  3  Bac.  Abr.  79.  Off.  Ex.  133.  C.  2. 

ed,  or  other  penalty,  either  by  himself,  his  factor,  or  other  person  for  him,  shall 
be  insolvent,  or  if  such  principal  being1  deceased,  his  or  her  estate  and  effects, 
which  shall  come  to  the  hands  of  his  or  her  executors,  administrators,  or  assignees, 
shall  be  insufficient  for  the  payment  of  his  or  her  debts,  and  if  in  cither  of  the 
said  cases  any  surety  on  the  said  bond  or  bonds,  or  the  executors,  administrators, 
or  assignees  of  such  surety,  shall  pay  to  the  United  States  the  money  due  upon 
such  bond  or  bonds,  such  surety,  his  or  her  executors,  administrators,  or  as- 
signees, shall  have  and  enjoy  the  like  advantage,  priority,  or  preference,  for  the 
recovery  and  receipt  of  said  moneys  out  of  the  estate  and  effects  of  such  insolvent 
or  deceased  principal,  as  are  reserved  and  secured  to  the  United  S fates  ,•  and  shall 
and  may  bring  and  maintain  a  suit  or  suits,  upon  the  bond  or  bonds,  in  law  or 
equity,  in  his,  her,  or  their  name,  or  names,  for  the  recovery  of  all  moneys  paid 
thereon." 

The  preference  given  by  these  provisions  has  been  held  to  extend  to  debtors 
to  the  United  States  generally,  and  includes  the  case  of  a  person  becoming  indebt- 
ed to  them  as  the  indorser  of  a  bill  of  exchange  ( The  U.  States  v.  Fisher,  2 
Cranch,  358.);  but  the  priority  does  not  partake  of  the  character  of  lien  on  the 
property  of  public  debtors  ( The  U.  States  v.  Fisher,  Tlie.  U.  States  v.  Hooe,  3 
Cranch,  90.);  and  it  will  not  be  waived  by  proving-  against  their  debtor  under  a 
commission  of  bankruptcy,  and  voting  in  the  choice  of  assignees,  {Harrison  v.. 
Slerry,  5  Cranch,  289.)  nor  can  any  agent  of  the  United  States  destroy  their  pri- 
ority by  proving  their  debt  under  a  commission  of  bankruptcy  in  England,  voting 
for  assignees,  or  laying  an  attachment  against  the  property  of  the  bankrupts. 
(Per  Curiam,  Bee's  Rep.  246.) 

Though  the  priority  be  limited  to  certain  specified  cases  whilst  the  debtor  is 
living,  it  takes  effect  generally  upon  his  death  (Comm.  v.  Lewis,  6  Binn.  266. 
Dictum  of  Marshall,  C.  J.  2  Cranch,  390.);  but  it  seems,  that  in  order  to  bind  an 
executor  or  administrator,  notice  is  necessary  of  the  debt  due  to  the  United  States, 
or  no  devastavit  will  be  created  by  his  making  payment  to  creditors  in  the  ordinary 
course  of  business,  (Dictum  of  Marshall,  C.  J.  U.  Stales  v.  Fisher,  2  Cranch,  391. 
n.    16  Johns.  Hep.  85.) 

The  right  of  the  surety,  who  pays  a  bond  to  the  United  States,  is  only  a  right  to 
receive  payment  out  of  the  effects  of  the  principal,  as  fully  as  the  United  States 
would  have  by  reason  of  their  right  of  priority;  and  therefore  where  the  principal 
has  been  discharged  under  a  bankrupt  or  an  insolvent  law,  he  may  plead  his  certi- 
ficate or  discharg-e  to  a  suit  brought  against  him  by  such  surety,  although  the 
<Tni1cd  States  would  not  have  been  barred  thereby.  (Jlecd  v.  Emery,  1  Serg.  8c 
Hawle,  339.    Mkiny.  Dun/up,  16  Johns.  Rep.  77.) 


260  OF  DEBTS   DUE  TO  THE  CUOWN.  [BOOK  III. 

audita  querela  (g).  But  the  debts  due  to  the  crown,  which  are 
so  privileged,  must  be  such  as  are  due  by  matter  of  record,  or  by- 
specialty,  which,  as  we  have  just  seen,  are  of  the  same  nature  (A). 
And,  therefore,  sums  of  money  owing  to  the  king  on  wood  sales, 
sales  of  tin,  or  of  other  his  minerals,  for  which  no  specialty  is 
o-iven,  shall  not  be  preferred  to  a  debt  due  to  a  subject  by  matter 
of  record.  Hence,  though  fines  and  amercements  in  the  king's 
courts  of  record  are  clearly  debts  of  record,  and  entitled  to  such 
preference,  yet  amercements  in  the  king's  courts  baron  (i),  or 
courts  of  his  honours,  which  are  not  of  record,  have  no  such  pri- 
ority; nor  have  fines  for  copyhold  estates,  nor  money  arising  from 
the  sale  of  estrays  within  his  manors,  or  liberties:  for  these  are  not 
debts  of  record.  So  whatever  accrues  to  the  king  by  attainder,  or 
outlawry,  is  considered  as  a  debt  by  simple  contract  before  office 
found;  and,  although  debts  due  to  the  person  outlawed,  or  attaint- 
[261]  ed,  be  by  obligation,  or  other  specialty,  and  the  outlawry 
or  attainder  be  of  record,  yet  the  law  does  not  recognize  the  king's 
title  before  office  found:  for  till  then  it  does  not  appear  by  record 
that  any  such  debt  was  due  to  the  party  (#). 

So  if  the  king's  debtor  by  simple  contract  be  outlawed  on  mesne 
process,  the  debt  is  not  altered  in  its  nature,  nor  shall  it  have  pre- 
cedence, as  if  the  outlawry  be  subsequent  to  the  judgment,  and  the 
debt  therefore  of  record  (I).  Nor  does  the  prerogative  extend  to 
a  debt  assigned  to  the  king.  Therefore  it  was  held,  where  the 
obligee  of  a. bond,  after  the  death  of  the  obligor,  assigned  it  to  the 
king,  that  the  obligor's  executors  were  warranted  in  satisfying  a 
judgment  recovered  against  him  in  his  lifetime  in  preference  to  the 
bond  (m):  So  also  the  arrears  of  rent  due  to  the  crown,  whether  it 
be  a  fee-farm  rent,  or  a  rent  reserved  on  a  lease  for  years,  shall,  it 
seems,  be  regarded  in  the  light  of  a  debt  by  simple  contract  {n). 

Such  is  the  law  in  regard  to  debts  due  to  the  crown,  by  record, 
or  specialty. 

Next  in  order  are  certain  specific' debts,  which,  subsequently  to 
those  of  which  I  have  been  treating,  are,  by  particular  statutes,  to 
be  preferred  to  all  others;  as  forfeitures  for  not  burying  in  woollen 
[262]  by  30  Car.  2.  c.  3. :  money  due  for  letters  to  the  post  office 
by  9  Jinn.  c.  10.:  and  money  due  from  the  overseers  of  the  poor 
by  17  Geo.  2.  c.  3S.  (o). 

(g)  3  Bac.  Abr.  79.    Off.  Ex.  135.  Erby,  1  Salk.  80.    11  Vin.  Abr.  291. 

(h)   3    Bac.  Abr.  79.   Off.    Ex.    133.         (w)  Com.  Dig-.  Admon.  C.  2.  11  Vin. 

134.  Abr.  301.   Lane  65. 

0")  3  Bl.  Com.  25.  (>?)  3  Bac.  Abr.  80.  Off.  Ex.  135. 

Iky  3  Bac.   Abr.   80.    Off.    Ex.    134.  -  (o)  3  Bac.  Abr.   80.   in  note.    2  Bl. 

Com.  Dig-.  Admon.  C.  2.  Com.  511.    4  Burn.  Eccl.  L.  301. 

(/)  Com.  Dig-.  Admon.  C.  2.  Erby  v. 


CHAP.    II.]  OF  DEDTS  OF  UBCOHD.  %&% 


Skct.  II. 

Of  the  debts  of  record  in  general. — Of  judgments  ;  and  herein, 
of  decrees.  —  Of  statutes,  and  recognizances.  —  Of  docquet- 
ting  judgments. 

To  these  succeed  debts  of  record  in  general,  of  which  there  are 
two  classes:  first,  judgments  in  courts  of  record;  and  secondly, 
statutes  and  recognizances.  The  former  are  of  a  higher  nature  and 
of  a  greater  dignity  than  the  latter;  for  judgments  are  recovered 
on  judicial  proceedings  in  litigated  cases,  and  in  a  regular  course 
of  justice;  and  the  records  of  such  judgments  are  entered  on  pub- 
lic rolls  entrusted  to  the  custody  of  a  sworn  officer;  also  judgments 
confessed  by  the  testator  are  on  the  same  footing;  for  though,  in 
point  of  fact,  they  are  voluntarily  acknowledged,  yet  they,  as  well 
as  other  judgments,  are  presumed  to  have  been  given  adversely; 
the  law  supposes,  quod  judicium  redditur  in  invitum  (a). 

[263]  Hence  judgments,  as  well  such  as  were  recovered  against 
the  testator,  as  those  which  were  confessed  by  him,  are  in  a  pre- 
cedent degree  to  statutes  and  recognizances;  for  statutes  and  recogni- 
zances (of  the  nature  of  which  I  shall  more  fully  speak),  are  entered 
into  by  the  consent  of  the  parties;  the  former,  and  till  enrolment, 
the  latter,  are  carried  in  pockets,  or  deposited  in  escritoirs;  in  short, 
are  in  the  private  keeping  of  the  creditor  himself.  Nor  does  priority 
of  the  date  make  any  difference  in  favour  of  such  last- mentioned  se- 
curities (b).  An  executor  is  obliged  to  discharge  a  later  judgment,  in 
preference  to  a  statute,  or  recognizance,  prior  in  point  of  time  (c). 

Such  is  the  preference  to  which  judgments,  as  distinguished 
from  the  more  private  records,  are  entitled.  Nor  is  this  privi- 
lege confined  to  judgments  iri  the  courts  of  Westminster-hall,  but 
extends  itself  to  judgments  in  all  other  courts  of  record;  that  is  to 
say,  courts  in  cities,  or  towns  corporate  having  power  by  charter, 
or  prescription  to  hold  plea  of  debt  above  forty  shillings,  as,  in 
London,  Oxford,  and  other  places:  for,  although  in  the  first  in- 
stance, such  goods  only  can  be  taken  in  execution  on  those  judg- 
ments as  lie  within  the  jurisdiction  of  those  respective  courts;  yet, 
[264]  formerly,  if  the  record  were  removed  into  the  chancery  by 
certiorari,  and  thence  by  mittimus  into  one  of  the  superior  courts 
of  law,  execution  might  have  been  had  upon  the  defendant's  goods 
in  any  county  in  England  (d)  ;  and  now  by  the  stat.  19  Geo.  3.  c. 
70,  any  of  his  majesty's  courts  of  record  at  Westminster  may,  on 
a  proper  application,  cause  the  records  of  such  judgments  to  be  re- 
moved thither,    and  may  issue  writs  of  execution  against  the  per- 

(a)  3  Bac.   Abr.   80.   Off.  Ex.    136.  Hob.   195.   11   Yin.  Abr.    292.  in  note 

139.    Com.    Dig.  Admon.  C.   2.   Roll.  299.  2  Bl.  Com.  160.  341. 
Abr.  926.      Littleton  v.   Hibbins,  Cro.  (c)  Off.  Ex.  137.   Com.  Dig.  Admon. 

Eliz.  793.  c.  2.    4  Co.  59,  60. 

(£)  4  Co.  60.  5  Co.  28.  Off.  Ex.  137.         (</)  Off.  Ex.  139.  Swinb.  p.  6.  s.  16. 


264  OF  JUDGMENTS.  [BOOK  II  f. 

sons  or  effects  of  the  defendants,  in  the  same  manner  as  on  judg- 
ments obtained  in  those  superior  courts.  So  a  judgment  in  a  pie 
poudre  court,  which  is  a  court  of  record  incident  to  every  fair  and 
market,  and  is  the  lowest  court  of  justice  (e)  known  to  the  law  of 
England,  claims  the  same  preference  (/);  (1)  and,  by  the  above 
statute,  its  process,  after  judgment,  shall  be  aided  in  the  same  man- 
ner. Nor  does  the  priority  of  a  judgment  in  any  degree  depend 
on  the  original  cause  of  action;  a  judgment  against  the  testator  on 
a  debt  by  simple  contract  is  of  the  same  nature  as  a  judgment  on  a 
specialty  (g).  So  if  the  testator  were  bound  in  a  recognizance,  on 
which  a  scire  facias  was  brought  and  judgment  given  against  him 
in  his  lifetime,  although  this  judgment  be  not  quod  recuperet,  as 
in  case  of  actions  on  debt,  but  quod  habeat  executionem,  yet  since 
execution  is  the  fruit  and  effect  of  all  judgments,  this  is  in  sub- 
[265]  stance  of  the  same  nature,  and  may  well  be  classed  as  a  debt 
by  judgment  (h). 

Nor,  as  between  one  judgment  and  another,  is  priority  of  time 
material.  The  judgment  creditor,  who  first  sues  out  a  scire  facias, 
must  be  preferred;  but,  before  such  writ  be  sued  out  the  executor 
has  it  in  his  election,  where  there  are  two  judgment  creditors,  to 
pay  which  of  them  he  pleases  first;  and  if  each  bring  a  scire  facias 
on  his  judgment,  yet  the  executor  may  confess  either  action,  at  his 
option,  and  that  although  the  scire  facias  were  brought  by  the  one 
creditor  before  the  other  {i).  So  where,  after  verdict  for  the  plain- 
tiffin  assumpsit,  and  before  the  day  in  bank,  the  defendant  died, 
and  judgment  was  entered  the  next  term,  pursuant  to  the  stat.  17 
Car.  2.  c.  S.,  on  scire  facias  brought  against  the  executor,  it  was 
held,  that  the  judgment  should  by  relation  be  regarded  as  given  in 
the  lifetime  of  the  testator,  and  be  payable  accordingly  {k).  But 
where  the  defendant  in  an  action  on  simple  contract,  after  an  inter- 
locutory judgment,  died,  and  on  scire  facias  against  his  adminis- 
trator, a  writ  of  inquiry  issued,  and  damages  assessed,  judgment 
was  entered  up  against  the  intestate  ;  the  court  inclined  to  the  opi- 
nion, that  the  judgment,  pursuant  to  the  stat.  8  &  9  W.  3.  c.  11. 
[266]  ought  to  have  been  entered  up,  not  against  the  intestate  him- 
self, but  against  the  representative;  and  was  therefore  not  plead- 
able by  the  administrator  to  an  action  brought  against  him  on  a 

(e)  3  Bl.  Com.  32.  C.  2.  Vicl.  also  Gomersal  v.  Aske,  Yelv. 

(/)  11  Vin.  Abr.  297.  Searle  v.  Lane,  133. 

2  Vern.  89.  {[)  Off.  Ex.   138.  11  Vin.  Abr.  299. 

(g)   Vid.  3  Bl.  Com.  158.     11  Yin.  301.  2  Fonbl.  2nd  edit.  401. 

Abr.   299.    Com.   Dig.   Admon.   C.    2.  (/,•)  Com.   Dig.   Admon.  C.   11  Vin. 

Fitz.  76.  Abr.  302.     Burnett  v.  Holden,  1  Lev. 

(h)  Off.  Ex.  139.  Com.  Dig.  Admon.  277.     1  Mod.  6.  S.  C. 

(1)  Judgments  obtained  before  a  justice  of  tbe  peace,  and  filed  in  the  office  of 
Mie  Common  Pleas  of  the  proper  county,  according  to  the  act  of  Assembly,  or 
made  known  to  an  administrator  before  lie  lias  paid  away  the  estate,  are  entitled  to 
'.he  s:ime  priority  as  judgments  obtained  in  a  court  of  record.  Scot/,  v.  Ramsay, 
1  Biiin.  321. 


CHAP.  11.]  OF  JUDGMENTS.  266 

bond  (7).  In  like  manner,  where  a  defendant  died  after  a  writ  of  in- 
quiry executed,  and  before  the  return  of  it,  it  was  adjudged  that  a 
scire  facias  lay  against  his  executor,  to  shew  cause  why  the  da- 
mages assessed  should  not  be  recovered  (m);  nor  in  such  case  shall 
the  judgment,  if  on  simple  contract,  be  preferred  to  a  debt  by  spe- 
cialty. 

A  judgment  signed  at  any  time  during  the  term,  or  the  vacation 
immediately  subsequent,  relates  back  to  the  first  clay  of  the  term, 
although  the  defendant  died  before  the  judgment  was  actually  sign- 
ed; and  an  execution  tested  the  first  day  of  the  term  may  be  taken 
out  upon  it  against  his  goods  (n).  (1)  But,  if  the  writ  of  execu- 
tion be  not  tested  till  after  the  defendant's  death,  it  is  irregular, 
and,  in  such  case,  it  is  necessary  to  revive  the  judgment  by  scire 
facias  against  his  representative  (o).' 

If  a  judgment  be  kept  on  foot  merely  to  defraud  other  creditors, 
or  if  there  be  any  defeasance  of  it  in  force,  such  judgment  shall 
not  avail  to  preclude  them  from  their  debts  (p). 

[267J  A  judgment  quod  computet,  in  the  obsolete  action  of  ac- 
count, is  of  a  nature  too  incomplete  to  be  privileged  like  other 
judgments  (q). 

A  judgment  in  a  foreign  country  is  regarded,  in  our  courts, 
merely  as  a  debt  by  simple  contract  (r).  (2) 

Nor,  as  we  have  just  seen,  are  judgments  against  an  executor 
comprehended  within  the  same  class  as  those  which  are  recovered 
against  the  testator  (.?). 

(/)  11  Vin.  Abr.  279.  Weston  v.  James,  (p)  3  Bac.  Abr.  81.  Off'.  Ex.  137. 

1  Salk.  42.  Com.  Dig-.  Plead.  2  D.  9.  (q)  11  Vin.  Abr.  297.  in  note.  Seai-le 

(m)     Goldsworthy   v.     Southcott,    1  v.  Lane,   2  Freem.  103.  Vid.  L.  of  Ni. 

Wils.  243.  Pr.  127. 

(«)  Bragner  v.  Lang-mead,  7  Term  (r)  11  Vin.   Abr.   291.  2  Ponbl.  460. 

Rep.  20.  Dupleix  v.   De    Roven,    2  Vern.   540. 

(«)  Ileapv  v.  Paris,  6  Term  Rep.  368.  Walker  v.  Wiffer,  Dougl.  1. 

Vid.  also  7  Term  Rep.  24.  0)  Oft".  Ex.  138. 


(1)  Leiperv.  Levis,  Adm.  15  Serg\  &  Rawle,  108.  Den  v.  Hillman,  2  Halst. 
Rep.  180.  Center  v.  Billinghurst,  1  Cow.  Rep.  33.  "But  a  judgment  creditor  of 
an  insolvent  debtor  cannot  gain  a  priority  over  other  judgment  creditors  by  taking* 
out  and  levying  on  his  goods  a  fieri  facias  founded  upon  a  judgment  entered  after 
the  debtor's  death,  and  which,  as  well  as  the  execution,  has  relation  to  the  first 
day  of  the  term  preceding  his  death.  Leiper  v.  Levis,  Adm.  Wood  v.  Hopkins,  2 
Penn.  N.  J.  Rep.  689. 

(2)  Harris  v.  Saunders,  6  Dowl.  &  Ryl.  Rep.  471;  in  which  it  is  stated,  that  in 
distributing  assets,  a  foreign,  (i.  e.  Irish)  judgment,  was  not  in  practice  treated  as 
an  English  judgment,  and  entitled  to  priority.  In  Pennsylvania,  however,  a  judg- 
ment obtained  in  another  State,  and  made  known  to  executors  or  administrators, 
is  entitled  to  the  same  preference,  it  would  seem,  as  judgments  obtained  in  the 
Courtsof  the  State.  Bond's  Case,  Orph.  Ct.Pbila.  Co.  2d  Jan.  1823.  M.  S.  The  pro- 
tection of  the  executor  or  administrator,  who  cannot  be  supposed  personally  bound 
to  search  for  judgments  in  any  other  place  than  the  records  of  the  county  where 
the  deceased  resided  and  died,  is  to  be  found  in  the  provision  contained  in  the 
14th  section  of  the  Act  of  19th  April,  1792,  (Purd.  Dig.  376.)  authorizing  public 
notice  to  be  given  to  creditors,  who  within  twelve  months  after  such  notice  are 
bound  to  exhibit  their  claims,  or  forfeit  their  claim  to  any  share  of  the  assets. 


267  OF  JUDGMENTS.  [BOOK  III. 

In  case  a  scire  facias  be  brought  on  a  judgment  after  the  execu- 
tor has  exbausted  the  assets  in  the  discharge  of  such  of  the  king's 
debts  as  are  above  mentioned,  or  in  the  satisfaction  of  other  judg- 
ments, the  defendant  may  plead  generally,  that  he  hath  fully  ad- 
ministered; and  on  that  plea  he  may  give  evidence  of  those  facts, 
and  that  will  be  a  sufficient  defence  (t).  But  if  an  action  be  brought 
against  an  executor  on  a  specialty,  or  other  debt  of  an  inferior  na- 
ture, and  a  judgment  against  the  testator  remains  unsatisfied,  it 
must  be  pleaded  specially  (u). 

It  is  held,  that  an  executor,  by  bringing  a  writ  of  error  on  a 
judgment,  may  postpone  to  a  statute,  and  the  satisfaction  of  the 
[26S]  debt  on  the  statute,  pending  the  writ  of  error,  shall  be  no 
devastavit,  because  it  was  out  of  his  power  to  withstand  the  pay- 
ment of  it.  The  effect  of  the  judgment  is  by  the  writ  of  error  to- 
tally suspended  (v). 

But  if  no  writ  of  error  be  brought  on  the  judgment,  and  a  credi- 
tor by  statute  take  out  execution,  the  executor  is  bound  to  avail 
himself  of  his  remedy  by  audita  querela,  in  order  to  secure  a  fund 
for  the  satisfaction  of  the  judgment  (#0):  and  some  authorities  main- 
tain, that  though  a  writ  of  error  be  brought  on  the  judgment,  if  he 
fail  to  resort  to  an  audita  querela,  and  suffer  the  statute  to  be  exe- 
cuted, it  will.be  a  devastavit  (x). 

Nor  is  an  executor  bound  to  take  notice  of  judgments  in  the 
Courts  of  King's  Bench,  Common  Pleas,  and  Exchequer,  unless 
they  are  docquetted,  that  is,  abstracted  and  entered  in  a  book,  pur- 
suant to  the  stat.  4  &  5  IV.  &  M.  c.  20.  (y).  According  to  the  true  con- 
struction of  that  act,  a  judgment  not  docquetted  is  put  on  a  level 
with  simple  contract  debts  (z).  If  the  executor  have  notice  of  the 
judgment,  although  not  docquetted,  he  may  perhaps  be  warranted 
[269]  in  giving  it  a  preference  as  a  judgment,  but  if  he  in  that  case 
pay  other  debts  first,  he  is  clearly  not  liable  as  on  a  devastavit ; 
thus  to  charge  him  it  seems  that  no  other  than  the  prescribed  no- 
tice would  be  sufficient  (a).  A.nd  a  plea  of  plene  administravit 
to  an  action  brought  on  such  a  judgment  will  be  supported  by  evi- 
dence of  payment  of  debts  by  specialty,  or  by  simple  contract  (0). 

On  the  same  principle,  a  judgment  not  docquetted  according  to 
the  directions  of  the  statute  cannot  be  pleaded  to  an  action  on  sim- 
ple contract  (c). 

(t)  Off.  Ex.  138.  vid.  also  Hickey  v.  (x)  Ibid.  137.  in  note.  vid.  Bearblock 

Hayter,  6  Term  Rep.  388.   Sed  vid.  3  v.  Read,  Cro.  Eliz.  822. 

Bac.  Abr.  80.  and  in  .note.  (y)  3  Bl.  Com.  397. 

(u)    Parker   v.   Atfield,    Lrl.    Raym.  (z)  Hickey  v.  Hayter  administratrix, 

678.  S.  C.  Salk.  311.   2  Saund.  50.  6  Term  Rep.  384. 

(v)  11  Yin.  Abr.  292.   in  note.  ibid.  (a)  Per  Lord  Kenvon,  C.  J.  ibid. 

298,   299.  in  note.   BeMrhlock  v.  Read,  (b)  Hickey  v.  Havter,  6  Term  Rep. 

fro.  Eliz.  822.   I,,  of  Ni.  l'r.  142.   Yelv.  387,388. 

29.  (c)  Steel  v.  Roke,  Bos.  &  Pvdl.  307. 

CuO  <'H'.  !'.\.  137. 


CHAP.    II.]  OF  DECREES   IN   EQUITY.  269 

But  of  such  judgments,  when  docquetted,  an  executor  shall  be 
presumed  to  have  cognisance  (d). 

The  provisions  of  the  statute  do  not  extend  to  judgments  in  in- 
ferior courts  of  record  ;  and  the  executor  is  still  bound  to  take  no- 
tice of  them  at  his  peril  (e),  as  he  was,  before  that  act,  of  the  judg- 
ments of  the  courts  at  Westminster  (/). 

A  decree  in  a  court  of  equity  is  in  respect  to  the  course  of  ad- 
ministering assets,  equivalent  to  a  judgment  at  law,  and  shall  stand 
[270]  in  the  same  order  of  payment  (g).  (1) 

In  general,  actual  and  express  notice  of  a  decree  is  necessary  to 
make  it  binding  on  purchasers.  Notice  by  implication  in  respect 
to  them  is  effectual  only  where  a  suit  is  depending.  It  never  was 
the  doctrine,  that  a  decree  after  a  cause  is  ended  shall  be  construc- 
tive notice  to  purchasers  ;  (2)  but  it  is  the  pendency  of  a  suit  that 
creates  such  notice  in  their  case,  on  the  ground  that  a  suit  is  a  trans- 
action in  a  sovereign  court  of  justice,  and  every  man  is  presumed 
to  be  attentive  to  what  passes  there  (A),  (3)  and  also  on  the  policy' 
of  preventing  the  transfer  of  rights  in  litigation.  But  an  execu- 
tor shall  be  affected  with  implied  notice  of  a  decree  obtained  against 
the  testator  ;  therefore,  where  an  executor  paid  a  debt  due  by  spe- 
cialty, before  a  debt  due  by  a  decree,  of  which  he  had  no  actual 
notice,  he  was  decreed  to  pay  it  over  again  out  of  his  own  estate  (i). 

Although  an  executor  cannot  plead  or  give  in  evidence  at  law  (k), 
a  decree  of  a  court  of  equity,  yet  he  shall  be  protected  and  indem- 
[271]  nified  in  paying  due  obedience  to  such  decree,  and  all  legal 
proceedings  against  him  shall  be  stayed  by  injunction  (/). 

(d)  2  Bac.  Abr.  83.  In  note.  Little-  (A)  2  Fonbl.  156.  note  (n).  Sorrell 
ton  v.  Hibbins,  Cro.  Eliz.  793.  vid.  liar-  v.  Carpenter,  2  P.  Wms.  482.  Garth  v. 
man  v.  Harman,  3  Mod.  115.  11  Vin.  Ward,  2  Atk.  174.  Worsley  v.  Earl  of 
Abr.  274,  291.  Scarborough,  3  Atk.  392.     Walker  v. 

(e)  11  Vin.  Abr.  294.  Herbert's  case,  Smallwood,  Ambl.  676. 

3  P.  Wms.  147.    Off.  Ex.  139.  (i)  3  Bac.  Abr.  81.    Bucele  v.  Atleo, 

(/)  Littleton  v.  Hibbins,   Cro.  Eliz.  2  Vern.  37.     Searle  v.  Lane,  88.     Sor- 

793.  rell  v.  Carpenter,  2  P.  Wms.  483. 

(g)  11  Vin.  Abr.  301.     3  Bac.  Abr.  (k)  11  Vin.  Abr.    291.      Stasby   v. 

81.     Shafto  v.  Powel,  3  Lev.  355.  Ast-  Powell,  Freem.  333,  334. 

ley  v.  Powis,  1  Vez.  496.    Bligh  v.  Earl  (/)  3  P.  Wms.  41.  note  (F).     Hard- 

of  Darnley,  2  P.  Wms.  621.    3  P.  Wms.  ing  v.  Edge,  1  Vern.  143.     Morrice  v. 

401.  note  (F).    Morris  v.  Bank  of  Eng-  Bank  of  England,  Ca.  Temp.  Talb.  217. 

land,  Ca.  Temp.  Talb.  217.     Peploe  v.  4  Bro.  P.  C.  287.     Martin  v.   Martin, 

Swinburn,  Bunb.  48.    4  Bro.  P.  C.  287.  1  Vez.  214. 

See  also  2  Fonbl.  412.  note  (s). 

(1)  11  Serg.  &  Ruwle,  255.  But  a  decree  of  the  Orphan's  Court  confirming 
the  settlement  of  an  administration  account,  from  which  a  balance  appears  to  be 
in  the  hands  of  an  executor,  does  not  possess  the  character  of  a  judgment  or  de- 
cree in  equity,  so  as  to  entitle  the  person  to  whom  the  balance  is  due,  to  come 
in  as  a  judgment  creditor  for  such  balance,  in  the  distribution  of  the  estate  of  such 
executor,  he  having  died  after  the  decree,  and  the  assets  in  the  hands  of  his  ad- 
ministrator being  deficient.     iSkaw  v.  M( Cameron,  Mm.  11  Serg.  8c  Rawle,  252. 

(2)  See,  however,  JVatlington  v.  Hotv/ey,  1  Desaus.  Rep.  170. 

(3)  Murray  v.  Bnllou,  1  Johns.  Cha.  Rep.  566.  Murray  v.  Fi'tt/rr,  Hmthj  v. 
Finster,  2  Johns.  Cha.  Rep.  155.  158.  Edmunds  v.  Crenshaw  et  al.  1  M'Cord's 
Cha.  Rep.  252.      Walker  v.  But:,  1  Yeates,  574. 


271  OF  RECOGNIZANCES.  [lJOOK   III. 

But  if  the  decree  be  not  conclusive  of  the  matters  in  question, 
as  if  it  be  merely  to  account,  and  do  not  ascertain  the  sum  to  be 
paid,  it  is  analogous  to  a  judgment  quod  computet  at  law  ;  and 
that  is  no  complete  judgment  till  the  account  be  stated.  Therefore 
it  has  been  holden,  that,  pending  a  bill  in  equity,  and  after  such 
decree,  an  executor  may  pay  any  other  debt  of  a  higher  or  an  equal 
nature,  in  case  the  assets  be  legal,  although  he  has  no  power  of  so 
doing  as  against  a  final  decree  (rri). 

Next  in  rank  to  judgments  are  recognizances  and  statutes  {n). 

A  recognizance  is  an  obligation  of  record;  it  may  be  entered  in- 
to by  the  party  before  a  court  of  record,  or  magistrate  duly  author- 
ised, conditioned  for  the  performance  of  a  particular  act  ;  as  to  ap- 
pear at  the  assizes,  to  keep  the  peace,  to  pay  a  debt,  or  the  like. 
A  recognizance  is  in  most  respects  like  another  bond.  The  chief 
distinction  between  them  is,  that  the  latter  is  the  creation  of  a  new 
[272]  debt,  or  an  obligation  de  novo  ;  the  former  is  an  acknowledg- 
ment on  record  of  a  prior  debt,  of  which  the  form  is  :   "That  A. 

B.  doth  acknowledge  to  owe  to  our  lord  the  king,  lo  the  plaintiff,  to 

C.  D.  or  the  like,  the  sum  of  ten  pounds,"  with  condition  to  be 
void  on  performance  of  the  thing  stipulated.  And  in  such  case, 
the  king,  the  plaintiff",  or  C.  D.,  is  called  the  cognizee,  as  he  that 
enters  into  the  recognizance  is  called  the  cognizor.  This  instru- 
ment being  either  certified  to,  or  taken  by  the  officer  of  some  court, 
is  authenticated  only  by  the  record  of  such  court,  and  not  by  the 
party's  seal  (o). 

Of  securities  by  statute  there  are  three  species  ;  statutes  mer- 
chant, statutes  staple,  and  recognizances  in  the  nature  of  statutes 
staple  ;  and  though  they  are  fallen  into  disuse,  yet  as  they  are  fre- 
quently alluded  to  in  argument,  especially  on  this  subject,  it  seems 
necessary  to  give  some  explanation  of  them  (p).  In  order  to  form 
a  distinct  notion  of  their  nature,  we  must  recur  to  different  acts  of 
parliament. 

By  stat.  13  E.  1.  called  the  statute  dc  mercatoribus,  a  mer- 
chant is  empowered  to  cause  his  debtor  to  appear  before  the  mayor 
of  London,  or  before  some  chief  warden  of  a  city,  or  of  any  other 
town  which  the  king  shall  appoint,  or  before  other  sufficient  men 
[273]  chosen  and  sworn  thereto,  when  the  mayor  or  chief  warden 
cannot  attend,  or  before  one  of  the  clerks,  to  be  appointed  by  the 
king,  and  acknowledge  the  debt,  and  the  day  of  payment.  And 
the  recognizance,  that  is  such  acknowledgment,  shall  be  duly  enter- 
ed by  a  clerk  on  a  double  roll,  of  which  one  part  shall  remain  with 
the  mayor  or  chief  warden,  and  the  other  be  deposited  with  the 
clerks,  one  of  whom,  with  his  own  hand,  shall  write  an  obligation, 

(m)  Smith  v.  Haskins,  3  Atk.  ."85.  ard,  Cro.  Jac.  8.  35. 
Worslcy  v.  Earl  of  Scarbro',  3  Atk.  392.         (o)  2  Rl.  Coin.  341. 
Mason  v.  Williams,    2  Salk.    507.     11         (/>)  Vid.  2  Rl.  Com.  160.    2  Reeve's 

Vin.  Abr.  297.     3  Rac.  Abr.  83.  Hist.  Eng.  L.  160.393.  4  Reeve's  Hist. 

O)  Off.  Ex.  140.    2  Blac.  Com.  511.  Eng.  L.  "233,  254.   Sull.  Lect.  155,  156, 
Com.  Di#.  Admon.  C.  2.  Philips  v.  Ech- 


CHAP.   II.]  OF  STATUTES.  273 

to  which  writing  the  seal  of  the  debtor  shall  be  affixed,  with  the 
king's  seal  provided  for  that  purpose  ;  which  seal  shall  he  of  two 
pieces,  of  which  the  greater  piece  shall  remain  in  the  custody  of 
the  mayor  or  the  chief  warden,  and  the  other  piece  in  the  keeping 
of  such  clerk  ;  and,  if  the  debtor  do  not  pay  at  the  day  limited,  the 
merchant  shall  again  appear  before  the  mayor  and  clerk  with  his 
obligation;  and  if  it  be  found  by  the  roll  or  writing,  that  the  debt 
was  acknowledged,  and  the  clay  of  payment  expired,  then  the  sta- 
tute prescribes  certain  steps  to  be  taken  for  the  recovery  of  the 
debt.     This  obligation  is  called  the  statute  merchant. 

In  regard  to  the  kind  of  statutes  secondly  above  mentioned,  the 
staple,  that  is  to  say,  the  grand  mart  for  the  principal  commodities 
and  manufactures  of  England,  was  by  the  stat.  27  E.  3.  held  in 
certain  trading  towns.  And  in  order  that  contracts  made  within 
the  same  might  be  more  effectually  enforced,  that  act  directs  a 
course  similar  to  a  statute  merchant,  and  enacts,  that  every  mayor 
[274]  of  the  staple  shall  have  power  to  take  recognizances  of  debts 
arising  on  such  contracts,  in  the  presence  of  the  constables  of  the 
staple,  or  of  one  of  them  ;  and,  that  in  every  staple  there  shall  be 
a  seal  remaining  in  the  custody  of  the  mayor,  under  the  seals  of 
the  constables  ;  and  all  obligations  which  shall  be  made  on  such 
recognizances  shall  be  sealed  with  that  seal.  Such  obligation  is 
denominated  a  statute  staple. 

The  benefit  of  this  mercantile  transaction  is  extended  to  all  the 
king's  subjectsin  general, by  virtue  of  the  stat.  23H.8.  c.  6.  by  which 
it  is  enacted,  that  the  chief  justice  of  the  king's  bench,  and  the 
chief  justice  of  the  common  pleas,  and  in  their  absence  out  of  term, 
the  mayor  of  the  staple  of  Westminster,  and  the  recorder  of  the  city 
of  London,  jointly,  shall  have  full  power  and  authority  to  take  re- 
cognizances or  acknowledgments  of  the  king's  subjects  for  the  pay- 
ment of  debts  according  to  a  form  specified  ;  and  that  every  obliga- 
tion so  acknowledged  shall  be  sealed  with  the  seal  of  the  cognizor, 
and  also  with  such  seal  asthe  king  shall  appoint  for  the  same,  and  with 
the  seal  of  one  of  such  justices,  and  be  subscribed  by  him,  or  with 
the  seals  of  such  mayor  and  recorder,  with  their  names  subscribed. 
The  statute  then  directs,  that  such  recognizance  shall  be  duly  en- 
rolled in  a  manner  similar  to  the  statute  merchant,  and  provides, 
that  in  default  of  payment  of  the  debt  contained  in  such  obligation, 
the  cognizee  shall  have  the  same  advantages  in  every  respect  as  in 
the  case  of  an  obligation  by  statute  staple.      The  obligation  pursu- 
[275]  ant  to  this  act  is  styled  a  recognizance  in  the  nature  of  a  sta- 
tute staple. 

Such  are  the  three  species  of  statutes. 

Although  recognizances  are  entered  on  the  rolls  of  the  king's 
courts,  while  statutes  are  consigned  to  the  custody  of  the  party, 
and  hence  are  called  pocket  records  (q),  yet  both  species  of  securi- 
ties having  been  entered  into  voluntarily  and  privately,  are  regard- 
ed 5  Co.  28  b. 


275  RECOGNIZANCES   AND   STATUTES.        [BOOK  III. 

eil  as  equal  in  their  nature,  and  payable  in  the  same  order  (r).  Nor 
is  it  material  in  regard  to  payment  by  the  executor,  which  of  them 
are  prior  or  subsequent  in  point  of  date.  Therefore,  where  there 
are  many  cognizees,  he  may  prefer  a  subsequent  to  a  prior  statute 
or  recognizance,  for  they  all  equally  affect  the  personal  estate  ;  al- 
though, as  to  lands,  the  first  in  point  of  time  shall  have  the  prefer- 
ence (s). 

If  the  statute  or  recognizance  be  defeasanced  for  the  payment  of 
a  sum  of  money  at  a  clay  certain,  although  the  day  be  not  arrived, 
yet  it  is  a  debt  of  the  same  class  with  other  statutes  ;  for  it  is  a 
present  and  immediate  duty  to  be  discharged  at  a  future  period  (/). 
So,  where  a  testator  acknowledged  a  recognizance  in  the  nature  of 
[276]  a  statute  staple,  of  which  the  defeasance,  after  reciting  that 
the  testator  and  cognizee  as  his  surety  were  bound  in  an  obligation 
to  J.  S.  for  the  debt  of  the  testator,  with  a  condition  for  a  payment 
of  one  hundred  pounds  at  a  future  day,  provided  that,  if  the  testa- 
tor, his  executors,  or  assigns  should  pay  the  one  hundred  pounds 
to  J.  S.  at  the  day,  the  statute  should  be  void  ;  it  was  held,  that 
although  the  day  of  payment  were  not  yet  come,  and  it  were  a 
collateral  sum  to  be  paid  to  a  stranger  to  the  statute,  and  not  to 
the  cognizee,  and  therefore  no  duty  to  him,  and  although  the  heir 
of  the  testator  might  possibly  pay  the  money  at  the  day,  yet  inas- 
much as  the  statute  was  for  the  payment  of  a  certain  sum  of  money, 
with  which  by  intendment  the  executor  would  be  charged,  he 
might,  although  before  the  day  of  payment,  plead  the  statute  in 
bar  to  an  action  of  debt  on  a  bond  (ti).  But  if  the  testator  in  his 
lifetime  enter  into  a  statute  for  performance  of  covenants,  and  none 
of  them  are  broken,  to  an  action  of  debt  on  specialty  the  execu- 
tor cannot  plead  this  statute;  for  perhaps  the  covenants  may  never 
be  broken,  and  it  would  be  unreasonable  to  allow  him  to  elude  a 
just  debt  on  a  contingency  which  may  never  happen  (v).  So  if  it 
be  for  payment  of  money  when  an  infant  shall  come  of  age,  it  shall 
be  no  bar  to  other  debts,  for  the  infant  may  die  before  that  time  (w). 

[277]  If  a  statute  be  joint  and  several,  the  cognizee  may  elect 
to  sue  either  the  surviving  cognizor,  or  the  executor  of  him  who 
is  dead,  or  both  in  separate  actions.  If  it  be  joint  only,  the  survi- 
vor alone  is  liable  (,r). 

The  remedy  on  the  statute  is  more  expeditious  than  on  a  recogni- 
zance ;  since  execution  may  be  taken  out  on  a  statute  without  a 
scire  facias,  or  other  suit.  But  in  case  of  a  recognizance,  if  a  year 
pass  after  the  acknowledgment,  no  execution  can  be  sued  out  against 

the  party  without  a  scire  jacias  ;  and,   in  case  of  his  death,  al- 

» 

(?•)  Off.  Ex.  140.  v.  Sydnor,  Cro.  Car.  362. 

(a)  Off.  Ex.   140.     3  Bac.  Abr.   81.  (v)  3  Bac.  Abr.  81.  5  Co.  28.  Swinb. 

Roll.  Abr.  925.     Com.  Dig.  Admon.  C.  p.  6.  s.  16. 
2  Swinb.   p.  6.  s.  16.  (w)  Roll.  Abr.  925. 

(/)  11  Yin.  Abr.  286.     1  Roll.  Rep.         (.r)  11  Vin.  Abr.  288.  Rogers  y.Dan- 

405.     Vaugh.  104.  vers,  1  Mod.  165. 

O)  11    Vin.  Abr.   286.      Goldsmith 


CHAP.  II.]       OF  DEHTS  BY  SPECIALTY*  277 

though  a  year  be  not  elapsed,  yet  a  scire  facias  must  be  sued  out 
against  his  executor  (y). 

If  a  scire  facias  be  sued  out  on  a  recognizance,  an  executor 
shall  not  defeat  it  by  a  voluntary  payment  of  a  debt  by  statute  : 
but  if,  before  judgment  on  the  scire  facias ,  execution  be  sued  out 
against  him  on  the  statute,  it  shall  prevail  (z). 

A  recognizance  not  enrolled  shall  be  considered  as  a  bond,  and 
payable  accordingly  (a),  the  sealing  and  acknowledgment  of  it 
supplying  the  want  of  a  delivery. 

So  a  statute  not  regularly  taken  may  be  good  as  an  obligation  (b). 

[278]  Nor  are  other  inferior  debts  of  record  to  be  forgotten  ; 
as  issues  forfeited;  fines  imposed  by  the  judges  at  Westminster, 
or  at  the  assizes  ;  by  the  justices  at  quarter  sessions  ;  by  commis- 
sioners of  sewers,  or  of  bankrupts,  or  by  stewards  of  leets,  and 
the  like  ;  for  all  these  are  debts  of  record,  and  so  payable  by  the 
executor  (c).  Of  all  of  which,  as  well  as  those  by  recognizance  or 
statute,  he  is  bound  to  take  notice  at  his  peril  (d). 


Sect.   III. 

Of  debts  by  specialty,  and  herein  of  rent : — of  debts  by  sim- 
ple contract. 

The  class  of  debts  next  in  succession  are  debts  by  special  con- 
tracts; as  for  rent,  and  also  on  bonds,  covenants,  and  other  instru- 
ments under  the  seal  of  the  party. 

Although,  in  regard  to  rent,  the  lessor  has  a  remedy  often  more 
efficacious  in  his  own  hands  by  distraining;  yet,  between  a  debt  by 
obligation,  and  a  debt  by  covenant  for  a  sum  ceHlain,  or  for  dama- 
ges on  a  breach  of  covenant,  and  a  debt  for  rent,  there  is  no  dis- 
tinction of  rank  :  they  are  all  debts  of  the  same  degree  (a).  Nor 
[279]  does  it  make  any  difference  whether  the  rent  be  reserved  by 
lease  in  writing,  or  by  parol  :  for  in  the  latter  case,  the  rent  arises 
equally  from  the  profits  of  the  land,  and  is  regarded  as  a  debt  by 
specialty.  Nor  is  the  nature  of  the  debt  changed  by  the  determina- 
tion of  the  lease  :  the  contract  remains  in  the  realty,  although  the 
right  of  distress  be  gone  (&). 

(y)  Off.  Ex.  140.  511.    Com.  Dig\  Admort.  C.  2;    Plumef 

(z)  Off.  Ex;  140.  in  note.     11  Vin.  v.  Marchant,   3  Burr.  1384.     See  also 

Abr.  299.     2  Anderson,  157.  pi.  87.  Gage  v.  Acton,  1  Salk,  326. 

(a)  Bothomly  v.  Lord  Fairfax,   1  P.         (b)  3  Bac.  Abr.  82.  96.     Newport  v. 

Wms.  334.     2  Vern.  750.  S.  C.  Godfrey,  3  Lev.  267.     S.  C.  2  Ventre 

(&)  Cro.  Eliz.    Holling-worth  v.  As-  184.     Gage  v.  Acton,  Com.  Rep.  67. 

cue,  355.  461.  544.  2  Roll.  Abr.  149.  Stonehouse  v.  Ilford,  145.     Godfrey  v. 

(c)  11  Vin.  Abr.  278.     Off.  Ex.  118.  Newport,  Comb.  183.  11  Vin.  Abr.  289. 

(d)  Bothomly  v.  Lord  Fairfax.  Vid.  in  note.  Vid.  3  Bl.  Com.  ll  Stat,  8 
2  Vern.  750.  Ann.  c.  14. 

(a)   Off  Ex.   14G.     2   Bl.  Com.  465. 


279  OF  DEBTS   BY   SPECIALTY.  [BOOK  III. 

But  it  is  necessary  to  consider  rent  as  distinguished  into  such  as 
hath  been  left  in  arrear  by  the  testator,  and  such  as  hath  accrued 
due  subsequently  to  his  death. 

For  rent,  which  was  in  arrear  in  the  testator's  lifetime,  the  exe- 
cutor is  liable  merely  in  that  character  ;  as  the  testator's  debt,  he 
can  be  sued  for  it  in  the  detinet  only,  and  to  such  action  may  plead 
that  he  has  fully  administered  (c)  :  whereas,  for  the  subsequent 
rent,  the  executor  is  in  general  regarded  as  personally  responsible. 
He  has  no  right,  as  we  have  already  seen  (d),  to  waive  the  term, 
for  he  must  renounce  the  executorship  in  tolo,  or  not  at  all  ;  and 
if  he  entered  on  the  demised  premises,  as  by  his  office  he  is  bound 
to  do,  the  lessor  may  charge  him  as  assignee  in  the  debet  and  deti- 
net for  the  rent  incurred  subsequently  to  his  entry  (e). 

If  the  profits  of  the  land  exceed  the  amount  of  the  rent,  as  the 
[280]  law  prima  facie  supposes,  such  of  the  profits  as  are  suffici- 
ent to  make  up  the  rent  shall  be  appropriated  to  the  payment  of 
the  lessor,  and  cannot  be  applied  to  any  other  purpose.  Therefore, 
if  in  such  case  the  lessor  bring  an  action  against  the  executor  for 
the  rent,  he  cannot  plead  plene  administravit,  for  that  plea  would 
confess  a  misapplication  of  the  profits;  since  no  other  payment  out 
of  them  can  be  justified  till  the  rent  be  answered  (/).  On  the 
other  hand,  the  profits  of  the  land  may  be  inadequate  to  the  rent. 
In  a  variety  of  cases,  they  may  be  easily  supposed  insufficient  for 
a  given  period,  although  the  lease  may  on  the  whole  be  beneficial. 
As  in  respect  to  rent  for  the  occupation  of  premises  from  Michael- 
mas to  Lady-day,  especially  where  almost  the  whole  profit  is  taken 
in  the  summer  ;  as  in  the  case  of  a  lease  of  tithes,  or  of  meadow 
grounds,  which  are»usually  flooded  in  the  winter  (g").  So  the  pro- 
fits for  a  series  of  Jftears  may  be  less  than  the  amount  of  the  rent, 
although  the  leasefibr  the  whole  term  may  be  of  no  small  value  ; 
as  in  the  case  of  jt lease  of  woods,  which  are  fellable  only  once  in 
eight  or  nine  years,  and  the  felling  has  been  very  recent  (A).  In 
these  and  the  like  instances  the  executor  is  personally  liable  only 
to  the  extent  of  the  profits,  and  for  such  proportion  of  the  rent  as 
shall  exceed  the  profits  is  chargeable  merely  in  the  capacity  of  ex- 
ecutor, or,  in  other  words,  as  far  only  as  he  has  assets;  and  in  such 
case,  to  an  action  brought  by  the  lessor  against  him  in  the  debet 
[281]  and  detinet,  he  must  disclose  the  matter  by  special  pleading, 
and  pray  judgment  whether  he  shall  be  charged,  otherwise  than  in 
the  detinet  only,  for  more  than  the  actual  profits  (i). 

Thus  the  profits  of  the  land  are  to  be  applied  by  the  executor, 
in  the  first  place,  to  the  discharge  of  the  rent,  and  if  that  fund 
should  prove  insufficient,  the  residue  of  the  rent  is  payable  out  of 

(c)  Lyddall  v.  Dunlapp,  1  Wills.  4.  (/)  Buckley  v.  Pirk,  1  Salk.  317. 

Com.  Dig-.  Admon.  B.  14.  (g)  Oft'.  Ex.  149. 

(rf)  Supr.  143.  (h)  Ibid. 

(e)  Billinghurst  v.  Speerman,  1  Salk.  (*)  Buckley  v.  Pirk,  1  Salk.  317. 
297.  117.     Off.  Ex.  147. 


CHAP.  II.]       OF  DEBTS  BY  SPECIALTY.  281 

the  genera]  assets,  and  stands  on  the  same  footing  with  other  debts 
by  specialty. 

Debts  by  bond,  and  other  instruments  under  the  seal  of  the  par- 
ty, are  of  the  same  class  with  debts  for  rent  (k) ;  and  an  executor 
is  bound  to  pay  a  debt  on  specialty  before  a  debt  by  simple  con- 
tract. But  in  the  distribution  of  separate  property  of  a  married 
woman  as  assets  after  her  death,  a  bend  debt  is  not  entitled  to  pri- 
ority, for  the  bond  merely  as  a  bond  is  void  (/).  If  an  agreement 
be  entered  into  under  hand  and  seal  for  the  purchase  of  an  estate, 
although  the  estate  on  the  purchaser's  death  descend  to  his  heir 
free  from  all  debts  by  simple  contract,  and  the  personal  assets  be 
not  more  than  adequate  to  pay  for  the  estate,  the  vendor  being  a 
candidate  by  specialty,  may  at  law  charge  the  purchaser's  executor 
on  the  covenant  to  the  disappointment  of  all  the  simple  contract 
creditors  (w),  though  equity  will  marshal  the  assets  in  their  fa- 
vour (n).  An  executor  is  also  bound  to  pay  a  debt  on  specialty 
before  a  debt  by  simple  contract,  although  the  bond  be  not  yet 
due.  For  the  obligation  is  a  present  duty,  and  the  condition  is 
but  a  defeasance  of  it  (o).  Hence  it  hath  been  adjudged,  that  if 
an  action  be  brought  against  an  executor  on  a  simple  contract  of 
the  testator,  he  may  plead  that  his  testator  entered  into  a  bond 
payable  at  a  future  day,  and  it  shall  cover  assets  to  the  amount  of 
the  sum  payable  by  the  condition  (p).  But  if  the  testator  die  in- 
debted to  A.  in  one  specialty,  and  to  B.  in  another,  and  of  A.'s 
debt  the  day  of  payment  is  past,  and  of  B. 's  debt  the  day  of  pay- 
ment is  to  come,  the  executor  has  no  right  to  pay  B.  in  preference 
[282]  to  A.  :  yet  if  A.  forbear  to  demand  or  sue  for  his  debt,  till 
the  debt  of  B.  become  payable,  then  it  is  in  the  election  of  the  ex- 
ecutor to  pay  which  of  them  he  thinks  proper  (  q).  By  the  cus- 
tom of  London,  if  a  citizen  of  London  die  indebted  to  another  citi- 
zen by  simple  contract  made  within  the  city,  such  debt  is  equal  to 
a  debt  by  specialty,  and  the  payment  of  it  by  the  executor  shall 
be  binding  on  the  obligor  of  a  bond,  though  a  stranger  and  no 
citizen  (r). 

In  the  administration  of  assets,  a  contingent  security,  as  for  ex- 
ample a  bond  to  save  harmless,  shall  not  stand  in  the  way  of  a  debt 
by  simple  contract  (s).  And  if,  subsequently  to  the  payment  of 
the  simple  contract  debt,  the  contingency  should  happen,  it  seems 
reasonable  that  evidence  of  such  payment  should   be  admitted  on 

(k)  Off.  Ex.  146.  Ca.  Temp.  Hard.  228. 

(/)  Anon.  18  Vez.  258.  (  q)  Off.  Ex.  143.  Com.  Dig.  Admon. 

(to)  See  Brome  v.  Monck,   10  Ves.  C.  2.     Swinb.  p.  6.  s.  16. 

jun.  620,  621.  (r)  3  Bac.  Abr.  82.    Snelling-  v.  Nor- 

(n)  Vid.  supr.  417.  ton,    Cro.   Eliz.  409.     Noy  53.     Roll. 

(o)  11  Vin.  Abr.  304.     Leon.  187.  Abr.  557.    5  Co.  82  b.  83.    Scudamore 

(p)  3  Bac.    Abr.  81.      Buckland    v.  v.  Hearne,  Andrew's  Rep.  340. 

Brook,  Cro.  Eliz.  31.5.  Lemun  v.  Tooke,  (s)  11  Vin.  Abr.  395.  Lancy  v.  Faire- 

3  Lev.  57.     Goldsmith  v.  Sydnar,  Cro.  child,  2  Vern.  101.     Hawkins  v.  Dav, 

Car.  362,    Bank  of  England  v.  Morrice,  Ambl.  160. 


282  OF   DEBTS  BY   SPECIALTY.  [fiOOK    III. 

the  executor's  plea  of  plene  adrninistravit  to  an  action  by  the 
specialty  creditor  (s). 

But  where  the  contingency  has  taken  place,  although  the  debt 
consequent  upon  it  has  not  yet  been  paid,  it  may  be  pleaded  to  an 
action  by  a  simple  contract  creditor:  as,  where  the  testator  had 
executed  a  bond  to  A.  in  two  thousand  eight  hundred  pounds,  con- 
ditioned to  indemnify  him  against  another  bond  for  eight  hundred 
[2S3]  pounds,  which  he  had  executed  jointly  with  the  testator  to 
B.  for  the  debt  of  the  testator,  in  whose  lifetime  the  eight  hundred 
pounds  had  become  due,  and  were  still  unpaid;  on  the  executrix's 
disclosing  these  facts  in  a  plea  to  an  action  of  assumpsit,  and  stat- 
ing that  she  had  administered  all,  except  so  much  as  would  satisfy 
such  indemnity  bond,  it  was  held  to  be  a  sufficient  defence  (t). 

A  bond  merely  voluntary  shall  be  postponed  to  simple  contract 
debts  which  are  bona  fide  owing;  but  such  bond,  if  not  to  the  pre- 
judice of  creditors,  must  be  paid  by  the  executor,  and  in  preference 
to  legacies.  For  a  bond,  however  voluntary,  transfers  a  right  in 
the  lifetime  of  the  obligor;  whereas  legacies  arise  from  the  will, 
which  takes  effect  only  from  the  testator's  death,  and  therefore 
they  ought  to  be  postponed  to  a  right  created  in  his  lifetime  (u). 
But  an  executor  has  no  authority  to  pay  a  bond  founded  on  an  usu- 
rious contract,  or  a  bond  ex  turpi  causa.  Such  payment  will 
amount  to  a  devastavit,  as  well  against  legatees  as  against  credi- 
tors {v). 

If  there  be  a  joint  and  several  obligation,  an  executor  of  a  de- 
ceased obligor  may  pay  the  debt  out  of  the  estate  of  the  testator, 
[284]  and  plead  it  to  other  actions  by  creditors  or  specialties.  But  if 
the  obligation  be  joint  only,  there  the  survivor  must  be  charged  out 
of  his  own  estate,  and  the  executors  of  the  deceased  obligor  are 
not  liable  on  the  instrument  (w). 

A  demand  arising  from  a  covenant,  as  I  have  before  observed, 
is  of  the  same  nature,  whether  it  be  for  a  specific  sum,  or  whether 
jt  sound  merely  in  damages  (.t).  (1)  Thus  the  grantor's  covenant 
in  a  marriage  settlement  for  him  and  his  heirs,  that  the  premises 
are  free  from  incumbrances,  shall  rank  equally  with  debts  on 
bond  (y).     So,  to  an  action  on  simple  contract  against  an  executor, 

(s)  11  Vin.Abr.  307.  Allen,  40.  Sed  (v)  11  Vin.  Abr.  307.     Brownl.  33. 

vid.  Goldsb.  142.  Wincbcombe  v.  Bishop  of  "Winchester, 

(t)  Cox  v.  Joseph,  5  Term.  Rep.  307.  Hob.    167.     Robinson  v.   Gee,    1  Yes. 

(u)  11  Vin.  Abr.  304,  305.  1  Eq.  Ca.  254. 

Abr.  84. 143.  3  Bac.  Abr.  81,82.  Cray  (w)    11  Vin.  Abr.   288.     Rogers  v. 

v.  Rooke,  Ca.  Temp.Talb.  156.    Loeff's  Danvers,   1  Mod.  165.     S.  C.  Freem. 

v.  Lewen,  Prec.  Ch.  370.  Croft  v.  Pyke,  Rep.  127. 

3  P.  Wms.  182.     Lechmere  v.  Earl  of  (./)    Plumer    v.   Marchant,    3  Burr. 

Carlisle,   ibid.  222.     Lady  Cox's  case,  1380.    Freemoult  v.  Dedire,  1  P.  Wms. 

ibid.  339.     Lassels  v.  Lord  Cornwallis,  429. 

Finch.  Rep.  232.  (y)  3  Bac.  Abr.  81.11  Vin.  Abr.  292. 


(1)  Frazer  v.  Tunis,  1  Binn.  2j4. 


CHAP.   II.]  OF  DEBTS  BY  SPECIALTY.  284 

he  may  plead  that  the  testator  entered  into  certain  covenants,  and 
may  shew  the  breach  of  them,  and  state  the  amount  of  the  damages 
incurred,  and  that  he  has  not  assets  more  than  to  satisfy  them  :  the 
plea  will  be  good,  although  the  damages  are  not  liquidated  (z).  But 
where  the  husband  by  marriage  articles  having  agreed  to  settle  one 
thousand  five  hundred  pounds  per  annum  on  the  issue,  made  a  de- 
ficient settlement,  and  devised  all  his  unsettled  estates  for  payment 
of  debts,  it  was  adjudged  in  equity,  that  as  the  settlement  was  of 
less  than  the  stipulated  value,  the  widow  and  infant  were  to  be 
compensated  in  damages  ;  but  that  as  the  articles  made  no  mention 
[285]  of  any  specific  land,  nor  contained  any  covenant  in  regard  to 
its  value,  they  were  to  come  in  after  creditors  by  bond  (a). 

If  A.  covenant  to  pay  a  sum  of  money,  and  die  before  payment, 
it  may  be  recovered  against  his  executors  (6) :  whereas  it  has  been 
held,  that  if  he  covenant  that  his  executors  shall  pay  the  money, 
no  action  can  be  maintained  against  them,  on  the  principle  that  it 
could  not  be  a  debt  of  the  testator  (c)  ;  but  this  latter  case  is  of  very 
doubtful  authority,  for  there  also  the  testator  was  himself  bound, 
and  the  lien  falls  upon  his  representatives,  though  he  himself  could 
not  have  been  sued  ;  and  it  seems  that  on  either  covenant  they  are 
equally  responsible  (d). 

Of  this  class  also  are  debts  by  mortgage,  and  although  there  be 
neither  bond  nor  covenant  for  the  payment  of  the  mortgage  mo- 
ney, yet  it  is  payable  out  of  the  personal  assets  (e).  (1)  But  if  such 
debt  be  paid  out  of  those  assets,  the  other  creditors,  as  well  by 
specialty  as  on  simple  contract,  and  even  legatees,  are,  in  case  of  a 
deficiency  of  that  fund,  entitled  in  equity  to  the  advantage  of  the 
mortgage,  to  the  extent  of  what  was  applied  in  discharge  of  it  out 
of  the  personal  estate  (/"). 

[2S6]  Last  in  the  order  of  payment  are  debts  on  simple  contract; 
as  on  bills  and  notes  not  under  seal,  and  verbal  promises  (g),  or 
such  as  are  implied  in  law  :  thus  where  A.  received  with  an  ap- 
prentice the  sum  of  two  hundred  and  fifty  pounds,  and  died  about 
two  years  afterwards,  having  employed  the  apprentice,  during  that 
period,  in  inferior  affairs,  the  executors  were  decreed  in  equity,  af- 
ter payment  of  the  debts  by  specialty,  to  repay  the  money  as  a 
debt  due  by  simple  contract,  deducting  at  the  rate  of  twenty  pounds 

(z)   11  Vin.  Abr.  305.  Smith  v.  Har-  Vern.  524.    Powel  on  Mortgages,  813. 

man,  6  Mod.  144.  Howell  v.  Price,   1  P.  Wms.  291.  294. 

(a)  11  Vin.  Abr.  290.  305.     Whit-  King  v.  King,  3  P.  Wms.  358. 

church  v.  Bayntan,  2  Vern.  272.  (/)  Com.  Dig.  Chancery,    2  G.  4. 

(i)  Perrot  v.  Austin,  Cro.  Eliz.  232.  Fletcher  v.  Stone,  3  Vern.  273.     Wil- 

Sheph.  Epit.  990.  son  v.  Fielding,  ib.  763.    S.  C.  10  Mod. 

(c)  11  Vin.  Abr.  276.  Perrot  v.  Aus-  426.  Cope  v.  Cope,  Salk.  449.  and 
tin,  Cro.  Eliz.  232.  vid.  Co.  Litt.  386.  vid.  infr. 

(d)  Id,  3  Burr.  183,  1384.  (g)  2  Bl.  Com.  465,  466.  511.     Off. 

(e)  Vid.    Bristol    v.   Hungerford,    2     Ex.  155. 

(1)  Dandridge.  v.  Minge,  4  Rand.  Rep.  397. 


286  OF  DEBTS  BY  SIMPLE  CONTRACT.  [BOOK  III. 

a-year  for  the  maintenance  of  the  apprentice  during  the  time  he 
lived  with  his  master  (h).  On  contracts  of  this  nature,  debts  due 
to  the  king  shall,  it  seems,  be  satisfied  before  debts  which  are  due 
to  subjects  (ij  ;  the  wages  also  of  domestic  servants  and  of  labour- 
ers appear,  with  great  reason,  entitled  to  a  preference  ;  but,  with 
the  exception  of  these,  the  executor  has  a  right  likewise,  in  this 
species  of  debts,  to  prefer  in  payment  whichever  he  pleases  (k). 

But  where  the  testator,  though  in  no  respect  indebted  to  his 
brother,  had  signed  a  note  by  which  he  acknowledged  himself  in- 
debted to  his  brother  in  5000/. ,  and  always  kept  the  note  in  his 
own  custody,  and  the  brother  knew  nothing  of  it  at  the  time  it  was 
signed,  and  at  the  testator's  death  it  was  found  among  his  papers, 
it  was  held  to  be  a  matter  merely  initiate  or  intended,  and  never 
perfected,  and  consequently  as  no  debt  at  all  (/). 

With  regard  to  the  interest  of  debts  :  on  a  judgment  subsequent 
interest  cannot  be  claimed,  but  it  may  be  recovered  in  an  action  on 
the  judgment  (m).  Debts  by  specialty  are  payable  with  inter- 
est (n).  (1)  And  it  has  been  held,  that  even  on  demands  arising 
from  covenant,  although  not  liquidated,  and  sounding  only  in  da- 
[287]  mages,  interest  is  allowed  (o).  But  interest  cannot  be  re- 
covered on  a  bond  beyond  its  penalty  (p).  Yet  to  that  extent  it 
may  be  recovered,  although  not  expressly  reserved  (q).  In  respect 
to  interest  on  simple  contract  debts,  the  holder  of  a  bill  of  exchange 
or  of  a  promissory  note  is  entitled  to  recover  the  money  payable 
upon  it  with  interest  (r)  in  some  cases  from  the  date  of  the  bill  or 
note  (s) ;  but  in  general  from  the  time  at  which  it  ought  to  have 
been  regularly  paid  down  to  the  time  when  the  plaintiff  will  be  en- 
titled to  final  judgment  (7),  and  all  incidental  expences  occasioned 
by  non-acceptance,  or  non-payment  (w).  Thus,  on  a  bill  or  note 
payable  on  presentment,  interest  may  be  computed  from  the  pre- 
sentment (v).  And  in  regard  to  all  other  debts  of  this  species,  it 
is  the  constant  practice,  either  on  the  contract,  or  in  damages,  to 

(h)  Soan  v.  Bowden  &  Eyles.  M.  30  Bro.  Ch.  Rep.  496.  Grosvenor  v.  Cook, 

Car.  2.     Ch.  Ca.  Temp.  Finch.  396.   1  Dig.  Rep.  305.     Sed  vid.  Lord  Lons- 

Burn.  Just.  85.  daie  v.  Church,  2  Term  Rep.  388. 

(t)  3  Bac.  Abr.  80.  in  note.  (?)  Tidd's  Prac.  B.  R.  484,  485.  Far- 

(/fc)  2  Bl.  Com.  511.     1  Roll.  Abr.  quhar  v.  Morris,  7  Term  Rep.  124.  But 

927.    11  Vin.  Abr.  274.  in  note.    Shep.  see  1  Bos.  &  Pul.  337. 

Epit.  986.     Shep.  Touchst.  478.  (r)  Bailey  on  Bills  of  Exch.  90,  91. 

(/)  Disher  v.  Disher,  1  P.  Wins.  204.  Blaney  v.  Hendricks,  Bl.  Rep.  761.  Vid. 

(m)  Creuze  v.  Hunter,  2  Ves.  jun.  also  Bun.   119.     Auriol  v.  Thomas,  2 

162,  165.  Term  Rep.  52. 

(n)  Com.  Dig.  Chancery,  3  S.  1.  (s)  Bailey  on  Bills  of  Exch.  91. 

(o)  14  Vin.  Abr.  Interest,  C. 2.  Fonbl.  (t)  Robinson    v.   Bland,   Burr.  Rep. 

424.     Sed  vid.  Sweetland  v.  Squire,  2  1077. 

Salk.  623.  .(«)  Bailey  on  Bills  of  Exch.  91.    Au- 

(p)  Creuze  v.  Hunter,  2  Ves.  jun.  riol  v.  Thomas,  2  Term  Rep.  52. 

168.     Sharpe   v.   Earl  of  Scarbro',    3  (u)  Blaney  v.   Hendricks,  Bl.   Rep. 

Ves.  jun.  557.     Knight  v.  Maclean,  3  761. 


(1)   Shultz's  Appeal,  11  Serg.  &  Rawle,  182. 


CHAP.    II.]  CREDITOR  GAINING  PRIORITY.  287 

• 

give  interest  for  the  detention  (w).  Book  debts,  indeed,  form  an 
exception  to  this  rule  :  By  the  common  law  they  do  not  of  course 
carry  interest,  but  even  on  them  it  may  be  payable  in  consequence 
[2S8]  of  the  usage  of  particular  branches  of  trade,  or  in  cases  of 
long  delay  under  vexatious  and  oppressive  circumstances,  if  a  jury 
in  their  discretion  shall  think  fit  to  allow  it  (x). 

If  the  testator  by  the  will  direct  that  all  his  debts  shall  be  paid, 
or  make  any  provision  for  the  payment  of  his  debts  in  general, 
this  shall  revive  a  debt  barred  by  the  statute  of  limitations,  and 
render  it  payable  by  the  executor  with  the  others  (y). 

The  principle  here  laid  down  must  not  now  be  considered  as  the 
law,  as  in  a  late  case  Sir  Thomas  Plumer,  V.  C. ,  in  an  elaborate 
judgment,  after  considering  all  the  authorities,  decided,  that  a  de- 
vise in  trust  for  payment  of  debts,  did  not  revive  a  debt,  upon 
which  the  statute  of  limitations  had  taken  effect,  by  the  expiration 
of  the  time  before  the  testator's  death  (z).  (1) 


Sect.  IV. 

Of  a  creditor's  gaining  priority  by  legal  or  equitable  process. 
— Of  notice  to  an  executor  of  debts  by  specialty,  or  simple 
contract. 

Such  is  the  order  which  the  law  prescribes  to  an  executor  for 
the  payment  of  debts;  and  although  he  has  a  right  to  pay  one  cre- 
ditor in  preference  to  another  of  the  same  degree,  yet  this  election 
maybe  controlled  by  legal  or  equitable  proceedings  against  him, 
of  which  he  has  due  notice  («).  Thus,  if  an  action  be  properly 
commenced  against  an  executor  for  any  specific  debt,  it  must  be 
preferred  by  him  in  payment  to  others  of  the  same  class.  Nor,  in 
[2S9]  that  case,  shall  he  be  warranted  in  making  any  voluntary 
payment  of  such  other  debts,  to  defeat  the  party  of  his  remedy  (b). 

Yet  although  one  creditor  commence  an  action,  if  another  credi- 
tor in  equal  degree  commence  a  subsequent  action,  and  first  reco- 
ver judgment,  he  must  be  first  satisfied.  Hence  an  executor  has 
it  in  his  election  to  give  a  preference  by  confessing  judgment  in 

(w)  Craven  v.  Tickel,  1  Ves.  jun.  63.  (a)  Off.  Ex.  145. 
(x)  Edclowesv.  Hopkins,  Doug-1. 361.  (b)  11  Vin.  Abr.  296.  in  note.    Good- 
ly) Andrews   v.   Brown,   Prec.   Ch.  fellow  v.  Burchett,  2  Vern.300.  2Fonbl. 

385.     Blakeway  v.  Earl  of  Strafford,  2  412.     Com.  Dig.  Admon.  C.  2.     3  Bac. 

P.  Wms.  373.  Abr.  83.     Parker  v.  Dee,  2  Chan.  Ca. 

(z)  Burke  v.  Jones,  2  Vez.  &  Bea.  201.  Solley  v.  Gower,  2  Vern.  62.   Off. 

275..  Ex.  143.  146.     2  Bl.  Com.  512.- 

(1)  Roosevelt  v.  Mark,  6  Johns.  Cha.  Rep.  266.  Brown's  Mm.  v.  Griffith,  6 
Munf.  450.  Smith  v.  Porter,  1  Binn.  209.  Campbell's  Ex.  v.  Sullivan,  Hard. 
Rep.  17.  Chandler's  Ex.  v.  NeaVs  Ex.  2  Hen.  &  Munf.  124.  See  Lewis's  Ex. 
v.  Bacon's  Legatees,  3  Hen.  &  Munf.  89.     Anonymous,  1  Hayw.  243. 


289  CREDITOR  GAINING  PRIORITY.  [BOOK  III. 

the  action  of  the  one,  and  pleading  such  judgment  to  the  action  of 
the  other  (c).  But  if,  for  the  purpose  of  favouring  the  claim  of  one 
plaintiff  in  prejudice  to  that  of  another,  he  plead  a  matter  which 
he  knows  to  be  false,  the  plea  shall  not  be  available,  as  it  shall  be 
if  the  falsity  exist  not  in  his  own  knowledge,  as  if  he  plead  non 
est  factum  iestatoris  (d). 

And  even  after  an  interlocutory  judgment,  and  before  the  execu- 
tion of  a  writ  of  inquiry  of  damages,  he  may  confess  a  judgment 
in  an  action  for  a  debt  in  equal  degree  (e)  ;  for  he  is  in  no  case  bound 
against  his  will  to  defend  a  suit,  and  expend  the  assets  in  costs, 
where  the  case  is  clear(y). 

According  to  several  adjudged  cases  (g),  the  filing  of  a  bill  in 
[290]  equity  shall  equally  prevent  the  alienation  of  assets  as  the 
filing  of  an  original  at  law.  And,  therefore,  if  a  suit  in  chancery 
be  instituted  by  a  creditor  against  an  executor,  he  cannot  justify  a 
voluntary  payment  of  another  creditor  of  the  same  order.  But  a 
decision  to  that  effect  was  reversed  in  the  House  of  Lords,  princi- 
pally on  the  ground,  that  a  decree  cannot  be  pleaded  at  law  to  an 
action  brought  against  an  executor  on  another  debt  of  equal  rank. 
However,  it  is  now  settled,  that  though  a  decree  in  equity  cannot 
be  pleaded  at  law,  it  is  equivalent,  in  the  administration  of  assets, 
to  a  judgment  ;  and,  therefore,  that  if  a  decree  have  a  real  priority 
in  point  of  time,  not  by  fiction  and  relation  to  the  first  day  of  term,  it 
shall  be  preferred,  in  the  order  of  payment,  to  subsequent  judg- 
ments ;  and  the  executor,  as  we  have  seen,  shall  be  protected  in 
his  obedience  to  such  decree,  and  all  proceedings  against  him  at 
law  stayed  by  injunction  (h).  So,  pending  a  suit  in  equity'  by  one 
creditor,  an  executor  may  confess  a  judgment  at  law  in  favour  of 
another  creditor  of  the  same  degree  (z).  Or  after  a  suit  instituted 
by  a  creditor  for  an  account,  pay  any  other  creditor  in  preference, 
and  he  will  be  allowed  such  payment  in  passinghis  accounts  (k). 

He  may  also  confess  a  judgment  after  a  decree  quod  computet, 
if  before  a  final  decree.  Such  decree  quod  computet,  is  analogous 
to  an  interlocutory  judgment  at  law;  it  does  not  pass  in  remjudi- 
[291]  catam  until  the  final  decree  (/). 

Nor  will  equity  interpose,  where,  after  an  action  brought  by  one 

(c)  Off.  Ex.  145.  11  tin.  Abr.  296.  of  Orford,  ib.  188.  Wright  v.  Wood- 
in  note  302.  Palmer  v.  Lawson,  1  Lev.  ward,  1  Vern.  369.  3  Bac.  Abr.  81. 
200.  Waring-  v.  Danvers,  1  P.  Wms.  (ft)  Peploe  v.  Svvinburn,  Bunb.  48. 
295.  Mellor  v.  Overton,  Carter,  228.  Darston  v.  Earl  of  Orford,  3  P.  Wms. 
Goodfellow  v.  Burchett,  2  Vein.  300.  401.  note  F.  Forrest,  217.  Harding 
Swinb.  p.  6.  s.  16.  2  Fonbl.  411,  412.  v.  Edge,  1  Vern.  143.  2  Yern.  Bu- 
llolbird  v.  Anderson,  5  Term  Rep.  cele  v.  Atleo,  37.  Searle  v.  Lane,  88. 
238,  239.  Morrice  v.  Bank  of  England,  Ca.  Temp. 

(d)  l'l  Yin.  Abr.  296.  Parker  v.  Dee,     Talb.  217.     4  Bro.  P.  C.  287. 

2  Chan.  Ca.  201.     Jollv  v.   Gower,  2         ft)  Waring  v.  Danvers,   1  P.  Wms. 
Vern.  62.    ■  205.     Ca.  Temp.  Talb.  225. 

(e)  Smith  v.  Ilaskins,  2  Atk.  386.  (/,•)  Maltby  v.  Russell,  2  Sim.  &  Stu. 

(f)  Off.  Ex.  145.  227. 

(g)  2  Fonbl.  412.  note  S.  Joseph  v.  (/)  Smith  v.  Evles,  2  Atk.  385.  Ca. 
Moit,  Prec.  Chan.  79.     Darston  v.  Earl     Temp.  Talb.  217. 


CHAP.  II.]         CREDITOR  GAINING  PRIORITY.  291 

creditor,  an  executor  confesses  judgment  to  another  creditor  in 
equal  degree  (/) ;  even  although  the  judgment  be  given  on  a  quan- 
tum meruit,  without  a  writ  of  inquiry  to  ascertain  the  damages, 
if  they  be  so  laid  in  the  declaration  as  not  to  exceed  the  debt  which 
is  really  due(ra).  Nor,  where  a  creditor  sues  an  executor  at  law 
and  in  equity  at  the  same  time  for  the  same  demand,  will  equity 
compel  him  to  make  his  election  in  which  of  the  courts  he  will  pro- 
ceed, in  case  the  executor  be  attempting  to  prefer  other  creditors 
before  him  by  confessing  judgments  to  them,  but  will  merely  re- 
strain him  from  taking  out  execution  on  the  judgment  without  leave 
of  the  court  (n).  Nor  will  a  mere  demand  by  the  creditor  divest 
the  executor  of  his  right  of  giving  such  preference;  that  effect  can 
be  produced  only  by  the  process  of  a  court  of  justice  (o).  Thus 
the  executor  is  invested  with  large  discretionary  powers  of  prefer- 
ring one  creditor  to  another  of  the  same  class,  and  in  certain  cases 
he  may  avail  himself  of  the  privilege  with  great  propriety,  and  on 
solid  reasons  (p).  But,  in  general,  on  a  deficiency  of  assets,  it  were 
[292]  a  more  honourable  and  conscientious  discharge  of  his  duty, 
as  far  as  he  has  the  power  of  deciding,  to  pay  debts  of  equal  de- 
gree in  equal  proportions  (a). 

Nor  is  an  executor  warranted  merely  in  the  payment  of  one  debt 
before  another  of  the  same  order  ;  he  may  also  pay  a  debt  of  an 
inferior  nature  before  one  of  a  superior,  of  which  he  has  no  no- 
tice (r),  provided  a  reasonable  time  has  elapsed  after  the  testator's 
death;  for  such  payment,  if  precipitate,  would  be  evidence  of  fraud. 

Of  debts  of  record,  supposing,  in  the  case  of  judgments,  they 
are  docketed,  it  has  been  already  stated,  an  executor  is  bound  to 
take  cognizance,  as  well  as  of  a  decree  in  equity  :  constructive  no- 
tice in  respect  to  them  is  sufficient  (s) ;  but  of  other  species  of 
debts  there  must  be  actual  notice. 

It  has  been  asserted,  that  such  notice  must  be  by  suit  (7)  ;  but  it 
is  perfectly  clear,  that  an  executor,  if  he  be  by  any  means  apprized 
of  a  debt  of  a  higher  degree,  would  not  be  justified  in  exhausting 
the  assets  in  the  discharge  of  one  which  is  inferior  ;  yet  unless  he 
had  some  notice  of  the  former,  he  incurs  no  risk  by  the  payment, 
[293]  after  a  competent  time,  of  the  latter.  Hence  it  has  been 
held,  that  an  executor  may  plead  a  judgment  recovered  against  him 
on  a  simple  contract  to  an  action  of  debt  on  a  specialty,  if  he  had 
no  notice  of  such  specialty  (u)  ;  and   may  even  voluntarily  pay, 

(/)  3  Bac.  Abr.  83.  in  note.    Waring  (r)  3  Bac.  Abr.  82.  in  note.   L.  of  Ni. 

v.  Danvers,  1  P.  Wms.  295.  Pri.  178. 

(m)  11  Vin.  Abr.  298.  in  note.    War-  (s)  Dyer,   32.  in  note.     3  Bac.  Abr. 

ing  v.  Danvers,  1  P.  Wms.  295.  83.  in  note.     Littleton  v.  Hibbins,   Cr. 

(n)  3  Bac.  Abr.  83.     Barker  v.  Du-  Eliz.  793.     Searle  v.  Lane,  2  Vern.  88, 

meres,  Barnard.  Ch.  Ca.  277.  89.     Sed  vid.  L.  of  Ni.  Pri.  178.     Har- 

(o)  Off.  Ex.  145.  man  v.  Harman,  3  Mod.  115. 

ip)  11  Vin.  Abr.  270.  228.  Blundi-  (t)  3  Bac.  Abr.  83.  in  note.  Brook- 
veil  v.  Loverdell,  Sid.  21.   Off.  Ex.  260.  ing  v.  Jennings,  1  Mod.  175.    Vid.  Fitz- 

(q)  Off.  Ex.  260,  261.     3  Bl.  Com.  gib.  77. 

19.  (m)  3  Bac.  Abr.  82.  in  note.  Harman 

24 


293         NOTICE  TO  EXECUTOR  OF  DEBTS.   [BOOK  III. 

without  notice,  such  inferior  debt  in  exclusion  of  the  superior,  and 
a  very  just  principle;  for  otherwise  it  might  be  in  the  power  of  an 
obligee  to  ruin  an  executor  by  suppressing  a  bond  until  all  the  as- 
sets were  expended  in  the  payment  of  simple  contract  debts (w). 
And,  indeed,  after  a  suit  is  commenced,  yet  before  he  has  notice 
of  the  plaintiff's  demand,  he  is  warranted  in  paying  any  other  cre- 
ditor (,r).  On  the  other  hand,  an  executor  is  not  authorised  to 
confess  a  judgment  for  a  debt  of  an  inferior  nature,  if  he  has  notice 
of  the  existence  of  a  superior.  Thus,  where  an  executor  to  an 
action  on  bond  pleaded  a  judgment  confessed  by  him  on  the  pre- 
ceding day  on  a  simple  contract  debt,  the  plea  was  disallowed,  on 
the  ground  of  its  not  averring  that  the  defendant  had  no  notice  of 
the  plaintiff's  demand  {y). 

If,  ignorant  of  the  existence  of  a  bond,  he  confess  a  judgment 
on  a  simple  contract,  and  afterwards  judgment  be  given  against 
him  on  the  bond,  he  is  bound,  however  insufficient  the  assets,  to 
[294]  satisfy  both  the  judgments,  for  he  might  have  pleaded  the 
first,  if  he  had  not  had  assets  for  both  (z).  In  like  manner  a  judg- 
ment must  be  satisfied,  though  recovered  against  one  executor  only 
where  there  are  several  («),  or  recovered  against  one  executor  by 
the  name  of  an  administrator,  or  vice  versa  (b). 

v.  Harman,  2  Show.  492.   S.  C.  3  Mod.  (y)  Sawyer  v.  Mercer,  1  Term  Rep. 

115.  L.  of  Ni.  Pri.  178.   Davis  v.  Monk-  690. 

house,  Fitzg.  76.  Scudamore  v.  Hearne,  (z)  Com.  Dig1.  Admon.  C.  2.    Britton 

Andrew's  Rep.  340.  v.  Bathurst,  3  Lev.  114. 

O)  3  Bac.  Abr.  82.     On*  Ex.  145.  (a)  Com.  Dig.  Admon.  C.  2.     Cro. 

Britton  v.  Bathurst,  3  Lev.  115.     Haw-  Eliz.  471.   1  Sid.  404.  Parker  v.  Amys, 

Idnsv.  Day,  Ambl.  162,  vid.tam.  Green-  1  Lev.  261. 

wood  v.  Brudnish,  Prec.  Ch.  534.  (b)  Com.  Dig.  Admon.  C.  2.     Anon. 

(x)  Off.  Ex.145.  Plowd.  279.  Finch.  Cro.  Eliz.   646.     Parker  v.  Masters,  1 

L.  79.    Harman  v.  Harman,  3  Mod.  115.  Sid.  404.   Sed  vid.  Anon.  Cro.  Eliz.  41. 
I..  ofNi.  Pr.  178. 


[    ~95    ] 


CHAP.   III. 


OF    AN    EXECUTOR  S    RIGHT    TO    RETAIN  A  DEDT  DUE  TO  HIM   FROM 
THE   TESTATOR UNDER    WHAT    LIMITATIONS'. 

If  a  debtor  appoint  his  creditor  (a)  to  the  executorship,  he  is  al- 
lowed, both  at  law  and  in  equity,  to  retain  his  debt,  in  preference 
to  all  other  creditors  of  an  equal  degree.  This  remedy  arises  from 
the  mere  operation  of  law,  on  the  ground,  that  it  were  absurd  and 
incongruous  that  he  should  sue  himself,  or  that  the  same  hand 
should  at  once  pay  and  receive  the  same  debt.  And  therefore  he 
may  appropriate  a  sufficient  part  of  the  assets  in  satisfaction  of  his 
own  demand;  otherwise  he  would  be  exposed  to  the  greatest  hard- 
ship ;  for,  since  the  creditor  who  first  commences  a  suit  is  entitled 
to  a  preference  in  payment,  and  the  executor  can  commence  no 
suit,  he  must,  in  case  of  an  insolvent  estate,  necessarily  lose  his 
debt,  unless  he  has  the  right  of  retaining.  Thus  from  the  legal 
principle  of  the  priority  of  such  creditor  as  first  commences  an 
action,  the  doctrine  of  retainer  is  a  natural  deduction;  but  the  privi- 
lege is  accompanied  with  this  limitation,  that  he  shall  not  retain  his 
own  debt  as  against  those  of  a  higher  degree;  for  the  law  places  him 
[296]  merely  in  the  same  situation  as  if  he  had  sued  himself  as  ex- 
ecutor, and  recovered  his  debt,  which  there  could  be  no  room  to  sup- 
pose, during  the  existence  of  those  of  a  superior  order  (b).  As  where 
A.,  before  his  marriage,  covenanted  with  B.  and  C.  to  leave  them  by 
his  will,  or  that  his  executors  within  six  months  after  his  death  should 
pay  them  seven  hundred  pounds,  in  trust  to  pay  the  interest  to  his 
wife  for  life,  and,  on  her  death,  to  divide  the  principal  among  his 
children,  and,  in  default  of  children,  as  he  should  appoint,  and 
bound  himself,  his  heirs,  executors,  and  administrators,  in  a  penal- 
ty for  performance  ;  on  his  dying  before  his  wife,  without  issue 
and  intestate,  it  was  held,  that  B.,  in  the  character  of  administra- 
tor, might  retain  assets  to  that  amount  during  the  life  of  the  widow, 
against  a  bond  creditor,  who  sued  before  the  six  months  were 
elapsed  (c). 

So,  if  A.  and  B.  be  jointly  and  severally  bound  in  an  obliga- 
tion, and  A.  appoint  the  executrix  of  the  obligee  his  executrix,  and 

(w)  Supr.  239.     Thynn  v.  Thynn,  .1  Abr.   922,  928.     Plowd.  185.  543.     U 

P.  Wms.  296.  Yin.  Abr.  72.  261.     Winch.  19.     Harg 

(6)  2  Bl.  Com.  511.     3  Bl.  Com.  18,  Co.  Litt.  264.  note  1.   Yid.  infr. 

19.     Of.  Ex.32.  142,  143.     Com.  Dig-.  (r)  Plumer  v.  Marchant,  3  Burr.  1380 
Admon.  C.  2.    3  Bac.  Abr.  10.  83.  Roll. 


296  of  executor's  retainer  [book  III. 

die  leaving  assets,  she  is  not  compelled  to  resort  to  an  action  against 
B. ,  but  is  entitled  to  retain  for  the  debt  ;  in  case  there  be  no  as- 
sets, she  has  a  right  to  pursue  her  remedy  on  the  bond  against 
[297]  B.  (d).  So,  if  A.  be  indebted  to  B.  and  C.  by  several 
bonds,  and  die,  and  D.  take  out  administration  to  A.,  and  after- 
wards B.  die,  having  appointed  D.  his  executor,  he  may  retain  ef- 
fects, of  which  he  is  possessed  as  administrator  of  A.,  to  satisfy 
the  debt  due  to  him  as  the  executor  of  B.  (e).  (1)  If  A.  be  in- 
debted in  a  bond  to  B.,  and  die,  having  appointed  B.  his  executor, 
who,  after  having  intermeddled  with  the  goods,  and  before  pro- 
bate, also  dies ;  although,  before  his  death,  he  did  not  expressly 
elect  in  what  particular  effects  he  would  have  the  property  altered; 
yet  it  must  be  presumed  that  it  was  his  intention  to  pay  his  own 
debt  first,  and  therefore  his  executor  shall  have  the  same  power  of 
retaining  as  belonged  to  him  (/).  (2)  So,  for  a  bond  executed  by 
the  testator  to  A.  conditioned  for  the  payment  of  money  to  B., 
B.  it  seems,  in  case  he  is  executor,  may  retain  (g).  So,  if  admi- 
nistration be  granted  to  a  creditor,  and  afterwards  repealed  at  the 
suit  of  the  next  of  kin,  such  creditor  may  retain  against  the  right- 
ful administrator  (A).  In  short,  wherever  an  executor  might  have 
been  sued,  or  might  have  paid  a  debt,  he  has  authority  to  retain  (i). 

But  where  A.  and  B.  were  joint  obligors  in  a  bond,  the  former 
as  principal,  the  latter  as  surety,  A.  died,  B.  took  out  administra- 
tion to  him,  and  on  forfeiture  of  the  bond,  discharged  the  debt,  it 
[298]  was  held  that  he  could  not  retain,  for,  by  joining  in  the  bond, 
the  debt  became  his  own  (&).  Yet,  in  such  case,  it  seems  he  might 
retain  for  the  money  paid  as  constituting  a  simple  contract  debt. 

A  retainer  for  a  debt  may  either  be  given  in  evidence  on  plea 
of  plene  administravit,  or  it  may  be  pleaded  specially  (/). 

An  executor  may,  as  we  have  seen(m),  retain  both  at  law  and 
in  equity  for  his  whole  debt,  as  against  other  creditors  of  the  same 
degree  (n) :  but  equity  will  interpose  to  restrain  him  from  pervert- 
ing this  privilege  to  the  purposes  of  fraud  (o).  Nor  will  a  mere 
nomination  of  a  creditor  to  the  executorship,  if  he  refuse  to  act, 

(e?)  Com.  Dig.  Admon.  C.  1.     Fryer  v.  Marchant,  3  Burr.  1384. 

v.  Gildridge,  Hob.  10.    3  Bac.  Abr.  10.  (k)  11  Via.  Abr.  262.     Godb.  149.  1 

3  Kebl.  Rep.  166.     Cock  v.  Cross,  2  (/)  Loane  v.  Casey,    Bl.  Rep.^  965. 

Lev.  73.  Plumerv.  Marchant,  3  Bun-.  1383.     11 

(e)  11  Vin.  Abr.  261.    2  Brownl.  50.  Vin.  Abr.  266.     1  Brownl.  75. 

(f)  HVin.  Abr.  563.  Croft  v.  Fyke,         (w)  Supr.  295. 

3  P.  Wms.  183,  184.  and  note  B.    "  (n)  11  Vin.  Abr.  265,  in  note.  War- 

(g)  Com.  Dig.  Admon.  C.  2.  Semb.  ing  v.  Danvers,  1  P.  Wms.  295.  Musson 
Raym.  484.  v.  May,  3  Ves.  &  Bea.  194. 

(h)  11  Vin.  Abr.  265.  Blackborough  (o)  3  Bac.  Abr.  83.  in  note.  Cock  v. 
v.  Davis,  1  Salk.  38.  Goodfellow,  10  Mod.  496. 

(t)  Com.  Dig.  Admon.  C  2.    Plumer 

(1)  Thomas  v.  Thompson,  2  Johns.  Rep.  471. 

(2)  Griffith  v.  Chew's- Ex.  8  Serg.  &.  Rawle,  29. 


CHAP.   III.]  FOR  HIS  DEBTS.  298 

extinguish  his  legal  remedy  for  the  recovery  of  his  deht  (/>). 
Hence  if  a  creditor  he  appointed  executor  with  others,  he  may  sue 
them,  especially  if  he  hath  not  administered  [q).  If  there  be  not 
personal  assets,  he  may  sue  the  heir,  where  the  heir  is  bound  (r). 

• 

(p)  Rawllnson  v.  Shaw,  3  Term  Rep.         (r)  Harg.  Co.  Litt.  264  b.  note   1. 
557.  Wankford  v.  Wankford,  Salk.304.  Off. 

(5)  3  Bac.  Abr.  10.  in  note.  Off.  Ex.     Ex.  33,  34. 
33. 


[     2"     ] 


1    CHAP.  IV. 

OP    THE    PAYMENT    OF    LEGACIES. 


Sect.  I. 

Legacy  what — ivho  may  be  legatees — who  not — legacies  gene- 
ral, and  specific — lapsed,  and  vested. 

Having  thus  discussed  the  duty  of  an  executor  in  regard  to 
the  payment  of  debts  according  to  the  order  described  by  law,  the 
payment  of  legacies,  in  the  next  place,  demands  his  attention. 

A  legacy  is  a  bequest,  or  gift  of  personal  property  by  will. 

All  persons  are  capable  of  being  legatees,  with  some  special  ex- 
ceptions by  common  law,  and  by  statute  (a). 

To  this  disability  all  traitors  are  subject  (b).  By  stats.  25  Car.  2. 
c.  2.  and  1  Geo.  1.  stat.  2.  c.  13.  persons  required  to  take  the  oaths 
[300]  and  otherwise  qualify  themselves  for  offices,  and  omitting 
to  do  so,  shall  be  incapable  of  a  legacy.  By  stat.  9  &  10  Wm.  3. 
c.  32.  persons  denying  the  Trinity,  or  asserting  that  there  are 
more  gods  than  one,  or  denying  the  Christian  religion  to  be  true, 
or  the  holy  scriptures  to  be  of  divine  authority,  shall  for  the  se- 
cond offence  be  also  incapable  of  any  legacy.  Likewise,  by  stat. 
5  Geo.  3.  c.  27.  if  artificers  going  out  of  the  realm  to  exercise  or 
teach  their  trades  abroad,  or  exercising  their  trades  in  foreign  parts, 
shall  not  return  within  six  months  next  after  due  vyarning  given 
them,  they  shall  be. subject  to  the  same  disqualification.  And  by 
stat.  25  Geo.  2.  c.  6.  all  legacies  given  by  will  or  codicil  to  wit- 
nesses of  the  same  are  declared  void  (c).  (1)  And  the  statute  ex- 
tends to  wills  disposing  of  personal  property  only  (d). 

Although  a  man  cannot  make  a  grant  to  his  wife,  nor  enter  into 
a  covenant  with  her,  (for  such  grant  would  be  to  suppose  her  sepa- 

O)  Bl.  Com.  512,     4  Burn.  Eccl.  L.  Eccl.  L.  78. 
31.3.     4  Bac.  Abr.  337.  (d)    Lees  v.    Summersgill,    17   Yes. 

(b)  2  Bl.  Com.  512.  jun.  508. 

(c)  Vid.  2  Bi.  Com.  377.  and  4  Burn. 

(1)  A  legacy  given  to  a  feme  covert  during  lier  own  life  and  that  of  her  hus- 
band, and  to  the  heirs  of  her  body,  but  if  she  had  none,  then  over,  and  the  hus- 
band was  a  subscribing  witness  to  the  will,  but  died  before  it  was  proved,  and 
another  subscribing  witness  proved  it,  it  was  held  that  he  (the  husband)  did  not 
take  such  an  interest  in  the  legacy  as  would  make  it  void  under  the  statute,  on 
account  of  his  being  a  subscribing  witness,  and  that  the  wife  surviving  was  enti- 
tled to  the  legacy.     Woodbuy  v.  VoUins's  Ex.  1  Desaus.  Rep.  125. 


CHAP.  IV.]       DIFFERENT  KINDS  OF  LEGACIES.  300 

rate  existence,  and  to  covenant  with  her  would  be  to  covenant 
with  himself,  J  yet  he  may  bequeath  any  thing  to  her  by  will,  since 
that  cannot  take  effect  till  the  coverture  is  determined  by  death  (rf). 

An  infant  in  ventre  sa  mere  may,  as  we  have  seen,  be  appoint- 
ed an  executor.  He  is  also  capable  of  being  a  legatee  (e).  And 
a  bequest  of  2000/.  each  "to  all  the  children  of  my  sister  I.  G. 
whether  now  born  or  hereafter  to  be  born,"  has  been  held  to  in- 
clude all  children  born  after  the  testator's  death,  and  an  inquiry 
was  directed,  what  would  be  a  proper  sum  to  be  set  apart  to  an- 
swer- the  legacies  to  future  children  (/).  And  a  bequest  in  trust 
for  all  the  children  of  the  testatrix's  nephew  R.,  bom  in  the  life- 
time of  the  testatrix,  was  held  to  include  a  child,  of  which  the 
the  wife  of  R.  was  enceinte  at  the  time  of  the  testatrix's  death,  al- 
though not  born  until  several  months  afterwards  (g).  (1) 

If  a  legatee  is  sufficiently  described  in  a  will,  so  that  he  can  be 
identified,  a  mistake  of  his  christian  name  will  not  make  the  lega- 
cy void  :  as,  where  a  testator  gave  a  legacy  unto  my  namesake 
Thomas,  the  second  son  of  my  brother  John,  John  had  no  son  of  the 
name  of  Thomas,  but  his  second  son's  name  was  William,  and  he 
was  held  entitled  (A).  (2)  And  where  legacies  were  given  "to 
the  three  children  of  A.  the  sum  of  600/.  each,"  and  there  were 
four  children  all  born  before  the  date  of  the  will ;  the  four  were 
held  intitled  to  600/.  each,  for  that  it  was  a  mere  slip  in  expression, 
the  meaning  being,  all  children  ;  and  the  court  conceiving  the  in- 
tention to  be  to  give  to  each  child  so  much,  struck  out  the  specifi- 
ed number  (i).  (3) 

Under  a  bequest  by  an  unmarried  man  "to  my  children,"  parol 
evidence  was  allowed  to  shew  whom  the  testator  considered  in  the 
character  of  children  :  and  his  illegitimate  children,  having  obtain- 
ed a  name  by  reputation,  were  admitted  to  take,  though  not  named 

(d)  1  Bl.  Com.  442.     Harg\  Co.  Lit.  (g)  Trower  v.  Butts,  1  Sim.  8c  Stu.' 

112.  181. 

0)  Northey  v.    Strange,  1  P.  Wnis.  (h)  Stockdale  v.Bushby,  Coop.  Rep. 

342.  vid.  Ellison  v.  Airev,   1  Yes.  1J4.  229.   and  10  Ves.  381.   S.   C.  and  see 

Clarke  v.  Blake,  2  Bro.  Ch.  Rep.  320.  Careless  v.  Careless,  1  Meri.  Rep.  384. 

and  1  Cox's  Rep.  248.  same  principle  decided,  and  19  Ves.  601. 

(/)  Defflis  v.  (ioldschmidt,  1  Mer.  CO  Uarvev  v.  Hebbert,  19  Ves.  125. 
Rep.  417.  S.  C.  19  Ves.  566. 


(1)  So  where  the  testator,  after  directing  the  payment  of  his  debts  and  fune- 
ral expences,  and  giving-  legacies  to  and  making  provision  for  his  wife,  and  giv- 
ing legacies  to  several  of  his  grandchildren,  proceeded  as  follows,  "  I  will  and  de- 
vise unto  my  grandchildren,  the  children  of  my  son  Edward,  deceased,  all  the 
remainder  and  residue  of  my  estate,  both  real  and  personal,  whatsoever  and 
wheresoever  to  be  found;"  it  was  held  that  a  posthumous  grandchild,  in  ventre  sa 
mere  at  the  making  of  the  will,  and  death  of  the  testator,  was  entitled  to  agrand- 

hild's  share  under  the  will.     Swift  v.  Duffie/d,  5  Serg.  &  Kawle,  38. 

(2)  Powell  v.  Biddle,  2  Dall.  Rep.  70.     Tlioytas  v.  Stevens,  4  Johns.  Cha.  Rep. 

I)    {Jeer  it  us.  \.  Winds)  4  Desaus.  Rep.  85. 


300  DIFFERENT  KINDS  OF  LEGACIES.       [BOOK  III. 

•  in  the  will  (/).  But  a  bequest  "  to  such  child  or  children  if  more 
than  one  as  A.  may  happen  to  be  ensient  of  by  me,"  a  natural 
child  of  which  she  was  then  pregnant,  cannot  take  (A;). 

Grandchildren  in  a  will  may  be  construed  to  mean  great-grand- 
children, unless  the  intention  appears  to  the  contrary  (7).  (1)  The 
word  "relations"  in  a  will  means  "next  of  kin  {m).  (2)  And  a 
bequest  by  a  testator  in  India  "to  my  nearest  surviving  relations  in 
my  native  country  Ireland,"  was  held  confined  to  brothers  and 
sisters,  living  in  Ireland  or  elsewhere  (n). 

[301]  Of  legacies  there  are  two  descriptions  ;  a  general  legacy, 
and  a  specific  legacy  (o).  The  former  appellation  is  expressive  of 
such  as  are  pecuniary,  or  merely  of  quantity.  Under  the  denomi- 
nation of  specific  legacies  two  kinds  of  gifts  are  included;  as,  first, 
where  a  certain  chattel  is  particularly  described,  and  distinguished 
from  all  others  of  the  same  species  ;  as,  "  I  give  the  diamond  ring 
presented  to  me  by  A."  The  second  is  where  a  chattel  of  a  cer- 
tain species  is  bequeathed  without  any  designation  of  it  as  an  indi- 
vidual chattel  ;  as,  "  I  give  a  diamond  ring."  A  bequest  in  the 
former  mode  can  be  satisfied  only  by  the  delivery  of  the  identi- 
cal subject;  and  if  it  be  not  found  among  the  testator's  effects,  it 
fails  altogether,  unless  it  be  in  pawn,  when  the  executor  must  re- 
deem (p)  it  for  the  legatee.  But  a  bequest  of  the  latter  descrip- 
tion may  be  fulfilled  by  the  delivery  of  any  thing  of  the  same 
kind  (q).  (3)  A  legacy  of  "  50/.  for  a  ring"  is  a  general  pecuniary 
legacy  (r). 

Although  the  courts  are  averse  from  construing  legacies  to  be 
specific  (s),  yet,  if  the  words  clearly  indicate  an  intention  to  sepa- 
rate the  particular  thing  bequeathed  from  the  general  property  of 
the  testator,  they  shall  have  that  operation.  (4)    Hence,  under  some 

(i)  Beachcroft  v.  Beachcroft,  1  Mad.  (o)  4  Bac.  Abr.  337.  425.  2  Bl.  Com. 

Rep.  430.  and  see  Lord  Woodhouselee  512. 

v.  Dalrymple,  2  Men.  Rep.  419.  (p)  Ashburner  v.   M'Guire,    2  Bro. 

(k)  Earle  v.  Wilson,  17  Ves.  528.  and  Ch.  Rep.  113.  4  Bac.  Abr.  355.   Swinb. 

see  Arnold  v.  Preston,  18  Ves.  288.  part  7.  s.  20. 

(I)    Hussey    v.  Berkeley,    2  Eden's  (q)  2  Fonbl.  374.  note  O.     Purse  v. 

Rep.  194.  Snaplin,    1   Atk.    416.     Forrest.    227. 

(in)  Pope    v.  Wbitcombe,    3   Men.  Bronsdon  v.  Winter,  Ambl.  57. 

Rep.  689.  (r)  Apreece  v.  Apreece,   1  Ves.  and 

(n)  Smith  v.  Campbell,  19  Ves.  400.  Bea.  364. 

(s)  Ellis  v.  Walker,  Ambl.  310. 

(1)  Pembcrton  v.  Parke,  5  Binn.  601.  And  sons  and  daughters  in  a  will,  will 
extend  to  grandchildren  to  prevent  tbeir  being  cut  off.  Smith's  Case,  2  Desaus. 
Rep.  123.  n.  But  the  word  children  will  not  be  held  to  mean  grandchildren,  unless 
there  be  some  ambiguity  in  the  testator's  will  rendering'  it  necessary,  or  without 
such  construction  his  indent  could  not  be  satisfied.  Izard  v.  Izard,  2  Desaus. 
Rep.  308. 

(2)  M'Neilledge  v.  Gulbraith,  8  Serg.  8t  Rawle,  41.  M'Neilledge  v.  Barclay, 
11  Bferg.  &  Rawle,  103. 

(3)  A  bequest  of  "twenly  negroes"  is  specific  only  in  the  second  degree.  Wr- 
rcn  v.  Wig  fall,  3  Desaus.  hep.  47. 

(4)  3  Desaus.  Rep.  373. 


CHAP.   IV.}       DIFFERENT  KINDS  OF  LEGACIES.  301 

circumstances,  even  pecuniary  legacies  are  held  to  be  specific.  As 
a  certain  sum  of  money  in  a  certain  bag  or  chest  (t),  or  in  navy 
[302]  or  India  bills  («),  or  the  bequest  of  a  sum  of  money  in  the 
hands  of  A.  (v),  or  of  two  thousand  pounds,  the  balance  due  to 
the  testator  from  his  partner  on  the  last  settlement  between  them, 
if  the  testator  did  not  draw  such  money  out  of  trade  before  he 
died  (w).  So  a  devise  of  a  rent-charge  out  of  a  term  for  years  (x), 
and  a  bequest  of  a  bond,  or  of  the  testator's  stock  (1)  in  a  parti- 
cular fund,  have  been  thus  classed  (y),  as  likewise  has  a  legacy  to 
be  paid  out  of  the  profits  of  a  farm,  which  the  testator  directed  to 
be  carried  on  (2).  And  a  bequest  of  all  the  testator's  personal  es- 
tate in  a  certain  town  has  been  so  considered  (a). 

In  like  manner  the  testator  may  carve  specific  legacies  out  of  a 
specific  chattel;  as  where  he  gives  part  of  the  debt  due  to  him  from 
A.,  it  will  be  a  specific  legacy  (6).  So  a  bequest  of  part  of  the 
testator's  stock  in  a  certain  fund  shall  bear  the  same  construction  (c). 
But  a  testator  reciting  that  he  had  1500/.  5  per  cents,  gave  it  to 
A.  and  then  gave  to  B.  all  other  his  stocks  that  he  might  be  posses- 
sed of  at  his  death  ;  the  latter  bequest  is  not  specific,  but  is  liable 
to  debts  in  preference  to  the  former  (d). 

So  where  A.  devised  to  his  wife  all  his  personal  estate  at  B. ,  (2) 
this  was  held  to  be  a  specific  legacy ;  and  the  same  as  if  he  had  enu- 
merated all  the  particulars  there  (e). 

On  the  other  hand,  a  mere  bequest  of  quantity,  whether  of 
money  or  of  any  other  chattel,  is  a  general  legacy ;  as  of  a  quanti- 
ty of  stock  (/).  And  where  the  testator  has  not  such  stock  at  his 
death,  such  bequest  amounts  to  a  direction  to  the  executor  to  pro- 
[303]  cure  so  much  stock  for  the  legatee  (g). 

(/)  Lawson  v.  Stitch,  1  Atk.  508.  (a)  Sayer  v.  Sayer,  Free.  Ch.  392. 

O)  Pitt  v.  Lord  Camelford,  3  Bro.  (b)  Heath  v.  Perry,  3  Atk.  103. 

Ch.  Rep.  160.     Gillaume  v.  Adderley,         (c)  Sleech  v.  Thorington,  2  Ves.  563. 

15  yes.  jun.  384.  See  2  Fonbl.  374.  note  O.     IP.  Wms. 

(v)  Hinton  v.  Pinke,  1  P.  Wms.  540.  540,  note  1. 

(w)  Ellis  v.  Walker,  Ambl.  310.  (d)  Parrott  v.  Worsfield,  1  Jac.  and 

{x)  Long  v.  Short,  1  P.  Wms.  403.  Walk.  Rep.  594. 

(y)  Ashburner  v.  Macguire,  2  Bro.         (e)  2  Fonbl.  376.     Sayer  v.  Sayer,  2 

Ch.  Rep.  108.     Forrest,   152.     Avelyn  Yern.  688. 

v.  Ward,  1  Ves.  425.     1  Eq.  Ca.  Abr.  (/)  1  P.  Wms.  540,  note.     Purse  v. 

298.     Ashton  v.   Ashton,   3  P.  Wms.  Snaplin,  1  Atk.  414.     Sleech  v.  Thor- 

384.  ington,  2  Ves.  562.  . 

(z)  Mayott    v.  Mavott,  2   Bro.  Ch.         (g)  Partridge  v.  Partridge,  Ca.  Temp. 

Rep.   125.     Vid.  All  Souls'  College  v.  Talbot,  227.   Mann  v.  Copland,  2  Madd. 

Coddington,  1  P.  Wms.  598.  Rep.  223. 


(1)  A  bequest  of  all  the  testator's  right,  interest,  and  property,  in  thirty  shares 
in  the  Bank  of  the  United  States  of  America,  is  a  specific  legacy.  Walton  v.  Wal- 
ton, 7  Johns.  Cha.  Rep.  258.     See  also  Cuthbert  v.  Cuthbert,  3  Yeates,  486. 

(2)  So,  "1  leave  to  my  beloved  wife  C.  the  whole  property  that  she  brought 
me,  except  two  negro  slaves  John  and  Maurice,"  is  a  specific  legacy.  Warren  v. 
Wigfall,  3  Desaus.  Rep.  47.  So,  "  I  give  and  devise  unto  my  beloved  wife  B.  S. 
two  cows,  she  to  have  the  choice  out  of  all  my  cattle;  and  also  to  have  my  bed 
and  bedstead,  with  all  belonging  to  it,  and  as  much  of  my  house  and  furniture  as 
she  thinks  proper."  Coram,  v.  Shelby,  13  Serg.  &  Rawle,  348.  See  also  Lmcock 
v.  Glarbson,  Stuart  v.  Cursors  Ex.  1  Desaus.  Rep.  471,  501. 

25 


303  DIFFERENT  KINDS  OF  LEGACIES.         [BOOK  III. 

On  a  bequest  of  1,000/.  long  annuities  "now  standing  in  my 
name  or  in  trust  for  me,"  where  at  the  date  of  the  will,  the  testa- 
trix had  no  long  annuities,  but  had  1,000/.  3  per  cent,  reduced  an- 
nuities, it  was  held,  that  that  sum  passed  by  the  bequest  (A). 

But  if  a  testator  gives  a  sum  in  stock,  standing  in  his  name,  and 
has  not  the  stock  described,  nor  any  other  stock,  the  legacy  fails  {%). 
And  where  a  testator  being  indebted  on  mortgage,  and  possessed 
of  5,000/.  stock,  by  his  will  gave  to  A.  and  B.  all  the  stock  he  had 
in  the  3  per  cents.,  being  about  5,000/.  except  500/.  which  he 
gave  to  C. ;  and  he  devised  other  specific  parts  of  his  property  to 
be  sold,  and  the  produce  to  be  applied  in  discharge  of  the  mort- 
gage; and  afterwards  the  testator  sold  out  2,000/.,  part  of  the 
5,000/.,  and  paid  off  the  mortgage  with  it:  this  was  held  to  h^ave 
redeemed  the  legacy  pro  tanto,  and  that  the  specific  legatees  could 
have  no  relief  from  the  funds  by  the  will  appropriated  for  payment 
of  the  mortgage  (k). 

So  the  purchase  to  which  a  general  legacy  is  to  be  applied  will 
not  alter  its  nature;  as  where  it  is  directed  to  be  laid  out  in  land  (/). 
Personal  annuities  given  by  will  are  also  general  legacies  (m).  The 
same  legacies  may  be  specific  in  one  sense,  and  pecuniary  in  ano- 
ther; specific  as  given  out  of  a  particular  fund,  and  not  out  of  the 
estate  at  large;  pecuniary,  as  consisting  only  of  definite  sums  of 
money,  and  not  amounting  to  a  gift  of  the  fund  itself,  or  any  ali- 
quot part  of  it  (?i). 

In  a  case  before  Lord  Camden  C,  his  lordship  took  the  distinc- 
tion between  a  legacy  of  a  certain  sum  due  from  a  particular  per- 
son, and  a  legacy  of  such  debt  generally,  considering  the  former  as 
a  legacy  of  quantity,  the  latter  as  specific  (o).  So,  in  another  case, 
where,  after  the  following  bequest,  "  I  give  to  A.  one  thousand 
"  four  hundred  pounds,  for  which  I  have  sold  my  estate  this  day;" 
the  testator  received  the  whole  of  that  sum,  paid  it  in,to  his  banker's, 
and  drew  out  one  thousand  one  hundred  pounds  of  the  money;  this 
was  also  held  by  Lord  Bathurst  C.  to  be  a  legacy  of  quantity  ( p). 
But  Lord  Thurlow  C.  disallowed  that  distinction  (q):  and  held  a 
legacy  of  "the  principal  of  A.'s  bond  for  three  thousand  five  hun- 
dred pounds,"  to  be  a  specific  legacy,  notwithstanding  the  sum 
was  named.  (1) 

(/i)  Penticost  v.  Ley,  2  Jac.  &.  Walk.  («)  Smith  v.  Fitzgerald,  3  Ves.  and 

207.  Bea.  5. 

(i)  Evans  v.  Trip,  6  Madd.  Rep.  91.  (o)  2  P.  Wms.  330,  note  1.     Attor- 

(7c)  Humphreys    v.     Humphreys,    2  ney-General  v.  Parkin,  Ambl.  566. 

Cox's  Rep.  184.  (p)  Carteret  v.  Carteret,  cited  2  Bro. 

(/)  Hinton  v.  Pink,  1  P.  Wms.  540.  Ch.  Rep.   114. 

(?«)   Hume  v.  Edward*,  3  Atk.  693.  (q)  Ashburner  v.  Macguire,  2  Bro. 

I.ewin  v.  Levin,  2  Ves.  417.     2  Fonbl.  Ch.  Rep.  113,  114. 
378. 

(1)  So  a  bequest  of  "  all  the  money  due  on  a  bond  againbt  P.  P.  and  J.  P."  is 
a  specific  h-gacy.     Stout  v.  Hart,  2  Halst.  Rep.  41 1, 


CHAP.  IV.]   LEGACIES  LAPSED  OR  VESTED.  <         303 

A  legacy  to  a  natural  child,  of  "  5,000/.  sterling,  or  50,000  cur- 
rent rupees,"  afterwards  described  as  "  now  vested  in  the  East 
India  Company's  bonds,"  and  sometimes  mentioned  as  "  the  said 
sum  of  5,000/.  sterling,"  Lord  Eldon  held  not  specific  but  gene- 
ral; as  a  demonstrative  legacy,  with  a  fund  pointed  out  (V). 

Such  are  the  different  species  of  legacies.  They  are  next  to  be 
considered  as  lapsed  or  vested.  It  is  a  general  rule,  that  if  a  lega- 
tee die  before  the  testator,  the  legacy  shall  be  lapsed  (s),  (1)  and 
[304]  sink  into  the  residuum  of  the  testator's  personal  estate;  nor  is 
it  an  exception  that  the  legacy  is  left  to  A.,  his  executors,  adminis- 
trators, or  assigns  (t);  or  to  A.  and  his  heirs.  (2)  And  although  in 
the  bequest  of  a  legacy  to  A.  the  testator  should  express  an  inten- 
tion that  it  should  not  lapse  in  case  A.  die  before  him,  this  is  not 
sufficient  to  exclude  the  next  of  kin  (w).  Yet  a  bequest  may  be 
specially  framed,  so  as  to  prevent  its  lapse  on  such  previous  death 
of  the  legatee,  as  if  in  case  of  the  death  of  A.  before  the  testator, 
other  persons  are  named  to  take,  for  instance,  A.'s  legal  represen- 
tatives (z>),  or  the  "heir  under  this  will"  (iv);  or  to  A.  "and 
failing  him  by  decease  before  me  to  his  heirs,"  the  legacy  on  A.'s 
so  dying  shall  vest  in  such  nominees  (x).  Nor  is  a  legacy  to  two 
or  more  within  the  rule;  for  it  is  settled,  that  a  legacy  to  several 
persons  is  not  extinguished  by  the  death  of  one  of  them,  but  shall 
vest  in  the  survivor  (y).  So  where  a  legacy  was  given  to  a  daugh- 
ter for  life,  with  a  power  to  appoint  the  principal,  to  take  effect 
after  her  death,  and  if  no  appointment,  then  to  A.  and  B.,  and  the 
daughter  died  in  the  lifetime  of  the  testator,  the  Court  held,  that 
A.  and  B.  took  immediately  upon  the  testator's  death;  that  their 

(r)  Gillaume  v.  Adderlev,    15  Ves.  (v)  Bridge  v.  Abbott,  3  Bro.  C.  C. 

jun.  384.  224. 

(s)  4  Bac.  Abr.  387.     Elliott  v.  Da-  (w)  Rose  v.  Rose,  17  Ves.  jun.  347. 

venport,  1  P.  Wms.  83.     Hutcheson  v.  Vaux  v.  Henderson,  1  Jac.  and  Walk. 

Hammond,  3  Bro.  C.  C.  142.  388. 

(/)  Maybank  v.  Brooks,   1  Bro.  Ch.  (x)   Sibley  v.  Cook,  3  Atk.  572.  See 

Rep.  84.     Tidwell    v.  Ariel,  3  Madcl.  also  Sibthorp  v.  Moxan,  3  Atk.  580. 

Rep.  403.  (y)  Nerthey  v.  Burbage,  Gilb.  Rep,, 

(u)  Sibley  v.  Cook,  3  Atk.  572.  137.     Buffor  v.  Bradford,  2  Atk.  220. 

Ryder  v.  Wager,  2  P.  Wms.  331. 

(1)  Weishaupt  v.  Brehman,  5  Binn.  118.  Robinson  v.  Martin,  2  Yeates,  525. 
By  the  Act  of  19th  March,  1810,  (Purd.  Dig.  519.  5  Sm.  Laws,  512.)  it  is  pro- 
vided, that"  no  devise  or  legacy  in  favour  of  a  child,  or  other  lineal  descendant 
of  any  testator,  shall  be  deemed  or  held  to  lapse  or  become  void,  by  reason  of  the 
decease  of  such  devisee  or  legatee  in  the  lifetime  of  the  testator,  if  such  devisee 
or  legatee  shall  leave  issue  surviving  the  testator,  but  such  devise  or  legacy  shali 
be  good  and  available  in  favour  of  such  surviving  issue,  with  like  effect,  as  if  such 
devisee  or  legatee  had  survived  the  testator:  Provided  always,  that  nothing  herein 
contained  shall  be  construed  to  affect  any  devise  or  legacy  contained  in  the  last 
will  of  any  testator  who  shall  have  deceased  before  the  passing  of  this  act:  And 
provided  also,  that  nothing  herein  contained  shall  be  construed  to  defeat  the  in- 
tention of  any  testator  to  exclude  such  surviving  issue  or  any  of  them." 

(2)  Dickinson  v.  Purvis,  8  Serg.  &  Bawle,  71.  Sword's  Lessee  v.  Jl'lnms,  3 
Yeates,  34,  a  devise  to  a  granddaughter  before  the  Act  of  19th  March,  1810. 


304  LEGACIES  LAPSED  OR  VESTED.    [BOOK  III. 

interest  was  postponed  only  for  the  sake  of  the  daughter,  and  that 
it  made  no  difference  that  she  might  have  defeated  the  gift  hy  ap- 
pointment, if  she  had  survived  the  testator,  since  A.  and  B.  were 
to  take  if  no  appointment  (tv).  But  where  two  several  legacies  were 
given  to  A.  and  B.,  and  in  case  A.  orB.  died  without  lawful  issue, 
then  the  whole  of  the  said  two  legacies  to  go  to  the  survivor,  his 
executors,  administrators,  or  assigns,  and  A.  died  without  issue  in 
the  testator's  lifetime,  it  was  held  to  have  lapsed,  the  contingency 
on  which  it  was  given  over  being  too  remote.  Nor  does  the  rule 
extend  to  a  legacy  given  over  after  the  death  of  the  first  legatee,  for 
in  such  case  the  legatee  in  remainder  shall  have  it  immediately  (x). 
Nor  will  a  legacy  lapse  by  the  death  of  the  legatee  in  the  testator's 
lifetime,  if  he  is  to  take  in  the  character  of  trustee  (y). 

A  bequest  by  the  obligee  to  one  of  joint  obligors  of  a  debt  due 
on  the  bond,  in  these  terms — "I  remit  and  Jorgive  to  T.  W.  the 
sum  of  500/.  which  he  stands  indebted  to  me  on  his  bond;  and  I 
direct  the  said  bond  to  be  delivered  up  to  him  and  cancelled"  is 
merely  a  personal  legacy  to  T.  W.,  and  lapses  by  his  death  in  the 
lifetime  of  the  testator;  for,  notwithstanding  the  terms  in  which  it 
is  bequeathed,  such  a  bequest  does  not  operate  by  way  of  equita- 
ble release,  or  as  an  extinguishment  of  the  debt.  Therefore  the 
surviving  co-obligor,  and  the  representatives  of  the  deceased  lega- 
tee, are  not  discharged  from  the  payment  of  the  money  due  on  the 
bond  (z). 

A  legacy  is  also  lapsed  if,  before  the  condition  on  which  it  is 
given  by  the  will  be  performed,  the  legatee  die,  or  if  he  die  before 
[305]  it  is  vested  in  interest  («). 

So  where  a  bequest  was  to  a  son  of  the  testator  on  his  accom- 
plishing his  apprenticeship,  with  the  dividends  in  the  mean  time 
for  maintenance,  and  in  case  he  should  die  before  he  accomplished 
his  apprenticeship,  then  and  in  such  case  to  other  children,  and 
the  legatee  died,  having  accomplished  his  apprenticeship  in  the 
testator's  lifetime,  it  was  held  a  lapsed  legacy  (6).  And  where  an 
estate  was  devised,  charged  with  two  several  legacies  to  A.  and 
B.,  and  in  case  A.  or  B.  died  without  lawful  issue,  then  the  whole 
of  the  said  two  legacies  to  go  to  the  survivor,  his  executors,  &c. 
and  A.  died  without  issue  in  the  testator's  lifetime,  the  legacy  was 
held  to  have  lapsed,  the  contingency  on  which  it  was  given  over 
being  too  remote  (c). 

A  legacy  given  to  A.  to  be  paid  to  him,  his  executors,  &c.  within 

(u>)  Chatteris  v.  Young,  6  Madd.  Rep.  Eclcs  v.  England,  2  Yern.  468.  2  Fonbl. 

30.  399,  note  G.  and  H.     Earl  of  Inchiquin 

(x)  1  And.  33.  pi.  82.   Miller  -v.  War-  v.  French,  1  Cox's  Rep.  1. 
ren,   2  Yern.  207.     Perkins  v.  Mickle-         (z)  Izon  v.  Butler,   2  Price  Rep.  34. 

thwaite,  1  P.  Wms.  274.     Ryder  v.  YVa-  and  see  Toplis  v.  Baker,  2  Cox's  Rep. 

ger,  2  P.  Wms.  331.     Willing-  v.  Raine,  118. 

3  P.  Wms.  113.     Lumley  v.  May,  Prec.  (a)  2  Fonbl.  368.     1  Bac.  Abr.  410. 

Ch.  37.     Hornsby  v.  Hornsby,  Moselcy,         (b)  Humberstone  v.  Stanton,  1  Yes. 

319.    Woodward  v.  Glassbrcok,  2  Yern.  &  Bea.  385. 
378.     2  Fonbl.  308,  note  G.  <  >    Massev  v.  Hudson,  3  Meriv.  WQ 

(?/)  See  Oke  v.  Heath,   1  Yes.  140. 


CHAP.  IV.]         LEGACIES   LAPSED  OK   VESTED.  305 

twelve  months  after  the  death  of  B.  "  in  case  B.  shall  happen  to 
survive  my  wife,"  and  B.  having  died  in  the  lifetime  of  the  testa- 
tor's wife,  the  latter  words  were  construed  with  reference  only  to 
the  time  of  payment,  and  not  to  make  void  the  legacy  (b). 

We  have  already  seen  that  if  a  legacy  he  left  to  A.,  payable  to 
him  at  a  certain  age,  it  is  a  vested  and  transmissihle  interest  in  him, 
debitum  in  priescnii  though  solvendum  in  jutxiro:  That  it  is 
otherwise,  if  the  legacy  be  left  to  him  at,  or  if,  or  when  he  attains 
such  age  (c).  (1)  The  distinction  was  borrowed  from  the  civil  law, 
and  adopted  by  our  courts,  not  so  much  from  its  intrinsic  equity, 
as  from  its  prevailing  in  the  spiritual  courts;  for  since  the  chancery, 
as  will  be  hereafter  shown,  has  a  concurrent  jurisdiction  with  them 
in  respect  to  the  recovery  of  legacies,  it  is  reasonable  that  there 
should  be  a  conformity  in  their  decisions,  and  that  the  subject 
should  have  the  same  measure  of  justice,  to  whatsoever  court  he 
may  resort.  But  if  such  legacies  be  charged  on  a  real  estate,  or 
upon  land  to  be  purchased  with  the  residue  of  a  personal  estate  {d), 
in  either  case  they  shall  equally  lapse  for  the  benefit  of  the  heir;  (2) 
for  with  regard  to  devises  affecting  lands,  the  ecclesiastical  courts 
have  no  concurrent  jurisdiction,  and  therefore  the  distinction  does 
not  extend  to  them  (e).  If,  as  1  have  before  stated,  the  legacy  be 
made  to  carry  interest,  though  the  words  "to  be  paid"  or  "  paya- 
ble" are  omitted,  it  is  vested  and  transmissible  (/").  So  if  the  be- 
[306]  quest  be  to  A.  for  life,  and  after  the  death  of  A.  to  B.,  the- 
bequest  of  B.  is  vested  on  the  death  of  the  testator,  and  will  not 
lapse  by  the  death  of  B.  in  the  lifetime  of  A.  (g). 

Where  a  will  recited  the  probability  that  the  legatee  was  not 
living,  and  gave  him  a  legacy  upon  express  condition  that  he 
should  return  to  England,  and  personally  claim  of  the  executrix  or 
in  the  church  porch;  and  that  if  he  should  not  so  claim  within  se- 
ven years,  he  was  to  be  presumed  dead,  and  the  legacy  to  fall  into 
the  residue:  the  legatee  not  having  returned,  and  dying  abroad 
within  seven  years,  Lord  Eldon  held  that  the  legacy  was  not  due; 

(b)  Massey  v.  Hudson,  2  Meriv.  130.  373.  npte  M. 

(c)  Vid.  supr.  171,  172.  2  Fonbl.  (/)  2  Eonbl.  371.  note  K.  Clob- 
371.  note  K.  Blois  v.  Blois,  2  Ventr.  berie's  case,  2  Ventr.  342.  Pidlen  v. 
347.  2  Ch.  155.  Collins  v.  Metcalfe,  Serjeant,  2  Chan.  Ca.  155.  Stapleton 
1  Vern.  462.  Gordon  v.  Raines,  3  P.  v.  Cheele,  2  Vern.  673.  Herbert  v. 
Wms.  138.  Anon.  2  Vern.  199.  Clob-  Parsons,  2  Ves.  263.'  Fonereau  v;  Fo- 
berie's  case,   2  Ventr.  342.     Smell  v.  nereau,  3  Atk.  645. 

Dee,  2  Salk.  415.     Dawson  v.  Killet,  1  (g)  2  Fonbl.  371.  note  K.     Anon.  2 

Bro.  Ch.  Rep.  119.  Ventr.  347.     Northey  v.  Strange,   1  F'. 

(d)  Harrison  v.  Naylor,  2  Cox's  Rep.  Wms.  342.  566.  Darrel  v.  Molesworth, 
247.  2  Vern.  378.  Tunstall  v.  Bracken,  Amid. 

0)  4  Bac.  Abr.393.  2  Bl.  Com.  513.     167.     Dawson  v.  Killet,  1  Bro.  Ch.  Rep. 
1  F.q.  Ca.  Abr.  295.     Duke  of  Chandos     119.  181. 
v.   Talbot,  2  P.  Wms.  601.     2  Fonbl. 

(1)  Patterson  v.  Hatvthorn,  12  Serg'.  Sc  Kawle,  113.  Stone  v.  Ma&sci/,  2  Veates, 
369. 

(2)  Stone  v.  Jfassey,  2  Yeates,  J69.  Peittersoti  v.  Hawthorn,  12  Setg.  U  Kawle, 
114. 


306  OF  THE  EXECUTOR'S  ASSENT  [BOOK   III. 

the  existence  of  the  legatee,  though  appearing  otherwise,  being  to 
be  proved  by  the  particular  means  prescribed,  and  therefore  not 
within  the  cases  from  the  civil  law,  where,  the  end  being  obtained, 
the  means  were  not  essential  (A). 


Sect.  II. 

Of  the.  executor's  assent  to  a  legacy — on  what  principle  necessa- 
ry— what  shall  amount  to  such  assent — Jissent  express  or 
implied — absolute  or  conditional — has  relation  to  the  testa- 
tor's death — iv hen  once  made,  irrevocable — when  incapable  of 
being  made. 

But  the  bequest  of  a  legacy,  whether  it  be  general  or  specific, 
transfers  only  an  inchoate  property  to  the  legatee.  To  render  it 
complete  and  perfect,  the  assent  of  the  executor  is  requisite  (a).  (1) 
On  him  all  the  testator's  personal  property  is  devolved^  to  be  ap- 
plied in  the  first  place,  to  the  payment  of  debts;  and,  therefore,  be- 
fore he  can  pay  legacies  with  safety,  he  is  bound  to  see  whether, 
independently  of  them,  a  fund  has  been  left  sufficient  for  the  de- 
mands of  creditors. 

In  case  the  assets  prove  inadequate,  the  legacies  must  abate  or  fail 
altogether,  according  to  the  extent  of  the  deficiency.  If,  on  a  fail- 
[307]  ure  of  assets,  he  pay  legacies,  he  makes  himself  personally 
responsible  for  the  debts  to  the  amount  of  such  legacies.  Hence, 
as  a  protection  to  the  executor,  the  law  imposes  the  necessity  of  his 
assent  to  a  legacy  before  it  can  be  absolutely  vested;  and  such  as- 
sent when  once  given,  is  considered  as  evidence  of  assets,  and 
an  admission  on  the  part  of  the  executor  that  the  fund  *s  compe- 
tent (b). 

If,  without  the  assent  of  the  executor,  the  legatee  take  possession 
of  the  thing  bequeathed,  the  executor  may  maintain  an  action  of 
trespass  against  him(c).(2)  Nor,  even  in  case  of  a  specific  legacy, 
whether  a  chattel  real  or  personal  he  in  the  custody  or  possession 
of  the  legatee,  and  the  assets  be  fully  adequate  to  the  payment  of 
debts,  has  he  a  right  to  retain  it  in  opposition  to  the  executor,  by 
whom  in  such  case  an  action  will  lie  to  recover  it  (d).  Nor  has 
such  legatee  authority  to  take  possession  of  the  legacy  without  the 

(h)  Tulk  v.  Houlditch,  1  Yes.  Sc  Bea.  v.  Whitehead,  2  P.  Wins.  645. 

248.  (b)  Off".  Ex.  27,  28. 

(a)  3  Bac.  Abr.  84.    2  Bl.  Com.  512.  (c)  Off.  Ex.  27.  223.  3  Bac.  Abr.  84. 

Jlarg.  Co.  Litt.  111.     Aleyn.  39.     Ab-  4  Bac.  Abr.  441.     Dyer,  254.     Keihv. 

ney  v.    Miller,  2  Atk.  598.     Mead  v.  128. 

Lord  Orrerv,  3  Atk.  240.     Farrington  (d)   Mead  v.  Ld.  Orrerv,  3  Atk.  240. 

v.  Knighths   1  P.  Wins.  554.     Bennet  Off.  Ex.  222,  223. 


(1)   Wilson  v.  Rtne,  1  Harr,  &  Johns.  139. 

'  ;')  Cto  (rover,  fVitson's  Ex.  v.  Bine,  1  Hair.  &.  John,,  l^e. 


CHAP.  IV.]  TO  A   LEGACY.  307 

executor's  assent,  although  the  testator  by  his  will  expressly  di- 
rect that  he  shall  do  so;  for,  if  this  were  permitted,  a  testator 
might  appoint  all  his  effects  to  he  thus  taken  in  fraud  of  his  credi- 
tors (e).  Yet,  previously  to  the  assent  of  the  executor,  a  legatee 
has  such  an  interest  in  the  thing  bequeathed,  as  that,  in  case  of  his 
death  before  it  be  paid  or  delivered,  it  shall  go  to  his  representa- 
[308]  tive  (/),  or,  in  case  of  the  outlawry  of  the  legatee,  shall  be 
subject  to  the  forfeiture  (g). 

If  A.  release  by  will  a  debt  due  to  him  from  B.,  it  is  the  better 
opinion  that  the  assent  of  the  executor  is  necessary  to  give  effect  to 
the  testator's  intention;  for  although  on  the  one  hand  it  may  be  al- 
leged that  the  party  to  whom  the  debt  is  bequeathed  must  neces- 
sarily have  it  by  way  of  retainer,  and  that  such  a  clause  operates 
rather  as  an  extinguishment  than  as  a  donation,  and  therefore  that 
it  needs  no  such  assent  as  where  there  is  to  be  a  transfer  of  the 
property:  yet,  on  the  other  hand,  a  debt  so  released  is  regarded, 
with  great  reason,  in  the  light  of  a  legacy,  and,  like  other  legacies, 
not  to  be  sanctioned  by  the  executor,  in  case  the  estate  be  insuffi- 
cient for  the  payment  of  debts.  But  as  soon  as  the  executor  as- 
sents, and  not  before,  it  shall  be  effectually  discharged  (A). 

With  respect  to  what  shall  constitute  such  assent  on  the  part  of 
the  executor,  the  law  has  for  this  purpose  prescribed  no  specific 
form ;  a  very  slight  assent  is  held  sufficient  (i).  It  may  be  either  ex- 
press or  implied,  absolute  or  conditional. 

The  executor  may  not  only  in  direct  terms  authorize  the  legatee 
to  take  possession  of  the  legacy,  but  his  concurrence  may  be  infer- 
[309]  red  either  from  indirect  expressions  or  particular  acts.  And 
such  constructive  permission  shall  be  equally  available.  Thus,  for 
instance,  if  the  executor  congratulate  the  legatee  on  his  legacy;  or 
if  a  horse  is  bequeathed  to  A.,  and  the  executor  requests  him  to  dis- 
pose of  it;  or  if  B.  proposes  to  purchase  the  horse  of  the  executor, 
and  he  directs  B.  to  buy  it  of  A.;  or  if  the  executor  himself  pur- 
chase the  horse  of  A.,  or  merely  offer  him  money  for  it;  this  in 
either  case  amounts  to  an  assent  by  implication  to  the  legacy  (k). 
So  where  A.,  the  devisee  of  a  term,  granted  it  to  the  executor,  his 
acceptance  of  the  grant  from  A.  was  held  to  be  an  implied  permis- 
sion that  the  term  should  be  A.'s  to  grant  (/).  So  where  J.  S.  seised 
in  fee  of  a  foreign  plantation,  devised  it  to  A.,  and  the  executor 
granted  a  lease  of  it  for  years,  reserving  rent  in  trust  for  A.,  this 
was  adjudged  a  sufficient  assent  (m). 

If  a  term  be  devised  to  A.  for  life,  remainder  to  B.  the  assent  of 

0)  Off.  Ex.  223.  C.  460.    S.   C.  2  Ventr.  358.     4  Bac 

(f)  Off.  Ex.  28.  Abr.  445. 

(g)  Vid.  Off.  Ex.  29.  (*)  4  Bac.  Abr.  445.     Off.  Ex.  226. 
(A)  Off.  Ex.  29,  30.  Rider  v.  Wager,     Com.  Dig-.  Admon.  C  6.   Shep.  Touchs. 

2  P.  Wms.  332.     Vid.  Fellowes  v.  Mit-  456. 
chell,  1  P.  Wms.  83.    Sibthorp  v.  Mox-         (I)  Off.  Ex.  226. 
am,  3  Atk.  580.  {m)  Noel  v.  Robinson,  2  \entr.  358. 

(»)  Noel  v.  Robinson,  1  Yern.  94.   S. 


309  OF  the  executor's  assent        [book  hi. 

the  executor  to  the  devise  to  A.  shall  operate  as  an  assent  of  the 
devise  over  to  B.,  and  vest  an  interest  in  him  accordingly  (n).  •So 
an  assent  to  such  estate  in  remainder  is  an  assent  to  Ihe  present  es- 
tate (o):  For  the  particular  estate  and  the  remainder  constitute  but 
one  estate  (p).  But  if  a  lessee  for  years  bequeath  a  rent  to  A. ,  and 
[310]  the  land  to  B.,  the  executor's  assent  that  A.  should  have  the 
rent,  is  no  assent  that  B.  should  have  the  land,  because  the  rent  and 
the  land  are  distinct  legacies;  but,  under  special  circumstances,  an 
executor's  assent  to  one  legacy  may  enure  to  another,  as  if  the  case 
last-mentioned  be  reversed:  The  executor's  assent  that  B.  should 
have  the  land  seems  to  imply  his  assent  that  A.  should  have  the  rent; 
for  the  necessity  of  the  executor's  assent  is  established  with  a  view 
to  creditors;  now  to  them  the  land  is  equally  unproductive,  whe- 
ther it  passes  to  B.  charged  with  the  rent,  or  not;  and  also,  as  it  was 
the  testator's  intention  that  B.  should  hold  the  land  subject  to  the 
rent  to  A.,  the  executor's  assent  to  B.'s  having  the  land  shall,  in 
conformity  to  the  will,  be  construed  an  assent  to  the  legacy  to 
A.  (§-).  So  an  assent  to  a  devise  of  a  lease  for  years  is  an  assent  to 
a  condition  or  contingency  annexed  to  it:  As,  if  there  be  a  devise 
of  a  term  to  the  testator's  widow,  so  long  as  she  continues  unmar- 
ried; and  if  she  marry,  then  of  a  rent  payable  out  of  the  land;  the 
executor's  assent  to  the  devise  of  the  term  is  an  assent  to  that  of  the 
rent  in  case  of  the  devisee's  marriage  (r). 

An  assent  may  also  be  absolute  or  conditional.  If  it  be  of  the 
latter  description,  the  condition  must  be  precedent:  As,  where  the 
executor  assents  to  the  devise  of  a  term,  if  the  devisee  will  pay  the 
rent  in  arrear  at  the  testator's  death.  In  that  case,  if  the  condition 
be  not  performed,  there  is  no  assent;  but  if  the  assent  be  on  a  con- 
[311]  dition  subsequent,  as  provided  the  legatee  will  pay  the  exe- 
cutor a  certain  sum  annually:  such  condition  is  void,  and  a  failure 
in  performing  it  shall  not  divest  the  legatee  of  his  legacy  (s).  The 
state  of  the  fund  may  require  the  executor  to  impose  a  condition 
precedent  to  his  payment  of  the  legacy;  but  if  he  once  part  with 
it,  he  has  no  right  to  clog  it  with  future  stipulations,  and  make  that 
legacy  conditional  which  the  testator  gave  absolutely  (/). 

The  assent  of  an  executor  shall  have  relation  to  the  time  of  the 
testator's  death.  Hence,  if  A.  devise  to  B.  his  term  of  years  in 
tithes,  in  an  advovvson,  or  in  a  house  or  land,  and  after  the  testator's 
death,  and  before  the  executor's  assent,  tithes  are  set  out,  the  church 
becomes  void,  or  rent  from  the  under  tenant  becomes  payable,  the 
assent  by  relation  shall  perfect  the  legatee's  title  to  these  several 
interests  (w).  So  such  assent  shall  by  relation  confirm  an  interme- 
diate grant  by  the  legatee  of  his  legacy  (v). 

(n)  Com.  Dig.  Admon.  C.6.     10  Co.         (>•)  Com.  Dig.  Admon.  C.  6.     1  Roll. 

47  b.     1  Roll.  Abr.  620.     Plowd.  545.  Abr.  620. 

in  note.     Adams  v.  Price,  3  P.  Wms.  (s)  Com.  Dig.  Admon.  C.  8.  Off.  Ex. 

12.  238.    4  Bac.  Abr.  445.   Leon,  130,  1  >\ 

(o)  Com.  Dig.  Admon.  C.  6.  (/)  OfT.  Ex.  238. 

•  (p)  Off'.  Ex.'  236.  00  Off".  Ex.  240. 

(?)  Off'.  Ex.  237.  (v)   Ibid.  250. 


CHAP.  IV.]  TO  A  LEGACY.  311 

If  an  executor  once  assent  to  a  legacy,  he  can  never  afterwards 
retract,  and,  notwithstanding  a  subsequent  dissent,  a  specific  lega- 
tee has  a  right  to  take  the  legacy  (/),  and  has  a  lien  on  the  assets 
for  that  specific  part  and  may  follow  them.  And  an  action  at  law 
lies  against  an  executor  to  recover  a  specific  chattel  bequeathed,  af- 
ter his  assent  to  the  bequest  (u). 

If  a  term  is  devised  to  A.,  and  the  executor,  before  he  assents  to 
[312]  the  devise,  take  a  new  lease  of  the  same  land  to  himself  for  a 
larger  term  in  possession,  or  to  commence  immediately,  the  term 
devised  is  merged,  so  that  it  cannot  pass  to  A.,  although  the  exe- 
cutor should  afterwards  assent  (v).  An  assent  to  a  void  legacy  is 
also  void  {w). 

Such  is  the  nature  of  an  executor's  assent  to  a  legacy.  We  have 
already  seen  that  he  is  competent  to  give  it  before  probate  (#).  But 
if  he  has  not  attained  the  age  of  twenty-one  years,  he  is  incapable 
by  the  above-mentioned  stat  3S  Geo.  3.  c.  87.  (y),  of  the 
functions  of  an  executor,  and  therefore  his  assent  is  of  no  vali- 
dity  (*).  

Sect.  III. 

When  a  legacy  is  to  be  paid — to  ivhom — of  payment  in  the 
case  of  infant  legatees — of  a  married  woman — of  a  condi- 
tional payment  of  a  legacy — of  paymevt  of  interest  on 
legacies — of  such  payment  where  the  legatees  are  infants — 
of  the  rate  of  interest  payable  on  legacies. 

On  the  same  principle  that  the  assent  of  an  executor  to  a  legacy 
is  necessary,  he  cannot,  before  a  competent  time  has  elapsed,  be 
[313]  compelled  to  pay  it.  The  period  fixed  by  the  civil  law  for  that 
purpose,  which  our  courts  have  also  prescribed,  and  which  is  ana- 
logous to  the  statute  of  distribution,  (as  will  be  hereafter  seen,)  is 
a  year  from  the  testator's  death,  during  which  it  is  presumed  he 
may  fully  inform  himself  of  the  state  of  the  property  (a). 

Legacies  to  C.  "  and  to  the  heir  of  his  body,"  to  M.  "to  be  se- 
cured to  her  and  the  heirs  of  her  body,"  to  F.  "and  to  her  issue," 
are  absolute  legacies:  but  a  legacy  to  S.  "and  to  her  heirs,  (say 
children)  S.  is  only  entitled  for  life  (b). 

If  a  legacy  to  an  infant  be  payable  at  twenty-one,  and  he  die 
before,  his  representative  cannot  claim  it  till,  in  case  he  had  lived, 
he  would  have  come  of  age  (c);  unless  it  be  payable  with  interest, 

(t)  Off  Ex.  227.     4  Bac.  Abr.  445.  (a)  4  15ac.  Abr.  434.     Smell  v.  Dee, 

Mead  v.  Lord  Orrerv,  3  Atk.  238.  2  Sulk.  415.  pi.  2. 

(u)  Doe  v.  Guv,  3  East,  120.  (b)  Crawford  v.  Trotter, 4  Madd.Rep. 

(v)  Off.  Ex  228.  361. 

(w)  Plowd.  526.  (c)    Luke   v.  Alderne,  2  Vern.  51. 

(x)  Vid.  supr.  46.  Anon.    ib.  199.     Papwortb    v.  Moore, 

(y)  Supr.  31.  283.     Chester  v.   Painter,  2  P.   Wms. 

(z)   \  id.  Com.  Dig.  Admon.  E.     Off.  336. 
Ex.221. 

26 


313  OF  THE  PAYMENT  OF  LEGACIES.         [jBOOKlII. 

and  then,  as  we  have  seen,  such  representative  has  a  right  imme- 
diately to  receive  it  (c).  If  a  legacy  be  payable  out  of  land  at  a 
future  day,  although  given  with  interest  in  the  meantime,  if  the 
legatee  die  before  the  day  of  payment,  the  court  will  not  direct 
the  legacy  to  be  raised  until  the  time  for  payment  arrives,  although 
it  will  secure  a  personal  fund  for  a  future  or  contingent  legatee  f  of). 
But  where  a  will  directed  that  certain  legacies  "  were  to  be  paid 
on  the  land,"  but  expressed  neither  the  time  nor  the  manner  in 
which  they  should  be  raised  ;  nor  did  it  appear,  as  the  fact  was, 
that  the  estate  was  a  reversion  :  the  court  held,  that  as  a  reversion 
was  as  capable  of  being  sold  or  mortgaged  as  any  other  estate,  the 
legacies  should  be  raised  and  paid  with  interest  from  the  testator's 
death,  and  not  from  the  time  of  the  estate  falling  in.  In  case  a  le- 
gacy be  left  to  A.  at  twenty-one,  and  if  he  die  before  twenty-one, 
then  to  B.  ;  and  A.  die  before  he  attains  that  age,  B.  shall  be  enti- 
tled to  the  legacy  immediately  ;  for  he  does  not  claim  under  A. , 
but  the  devise  over  is  a  distinct,  substantive  bequest,  to  take  effect 
on  the  contingency  of  A's  dying  during  his  minority  (ej. 

But  where  legacies  were  given  to  A.  B.  and  C,  the  three  co- 
heiresses of  the  testator,  to  be  paid  at  their  respective  marriages, 
and  if  either  of  them  should  die,  her  legacy  to  go  to  the  survivors, 
and  one  of  them  died  unmarried  ;  it.  was  held,  that  the  survivors 
should  not  receive  the  legacy  of  the  deceased  before  their  respec- 
tive marriages  :  for  the  condition,  though  not  repeated,  was  annex- 
[314]  ed  to  the  whole,  whether  it  accrued  by  survivorship,  or  by 
the  original  devise  (/"). 

A  bequest  of  stock  to  trustees,  upon  trust  to  pay  the  dividends 
from  time  to  time  to  a  married  woman,  for  her  separate  use,  is  an 
unlimited  gift  of  the  dividends,  and  consequently  passes  the  capi- 
tal («■)• 

Where  a  legacy  was  given  on  condition  to  be  void  in  case  the 
legatee  should  succeed  to  an  estate  in  the  event  of  the  death  of  A. 
without  issue  of  her  body,  payment  was  decreed  in  the  lifetime  of 
A.,  and  without  security  for  refunding  (A).  And  where  30,000/. 
South  Sea  Annuities  were  given  to  trustees  in  trust  to  pay  the  di- 
vidends to  A.  ,  until  an  exchange  of  certain  lands  should  be  made 
between  him  and  B.,  and  then  the  capital  to  be  equally  divided 
between  them,  and  B.  died  before  the  time  limited  by  the  will 
for  making  the  exchange  expired,  A.  was  held  to  be  absolutely 
entitled  to  the  whole  legacy  (*), 

A  legacy   was  given  upon  condition   "  that  the  legatee  should 

(,-)  4  Rac.  Abr.  434.  in  note.     liar.  (c)  1  Eq.  Ca.  Abr.  299,  300.  Laundy 

rison  v.  Hackle,  1  Stra.  238.  480.     Ro-  v.  Williams,  2  P.  Wms.  478. 

den  v.  Smith,  Ambl.  588.   Fonnereau  v.  (f)  Moore  v.  Godfrey,  2  Vern.  620. 

Fonnereau,    1  Vez.  118.     Green  v.  Pi-  (g)  Haijr  v.  Svvinev,  1   Sim.   &.  Stu. 

got,  1  Rro.  Ch.  Rep.  105.     Ilearle  v.  487. 

Greenbank,   1   Vez.   307.     Crickctt  v.  (/>)   Fawkes  v.  Gray,  18  Ves.  131. 

Dolby,  3  Ves.  jun.  10.     Vid.  supr.  171.  (z)  Lowther  v.  Cavendish,  1  Eden's 

(r/)  Gawler  v.  Standerwick,  2  Cox's  ltcp.  99. 
ficp.  15. 


CHAP.  IV.]       OF  THE  PAYMENT  OF  LEGACIES.  314 

"change  the  course  of  life  he  had  too  long  followed,  and  give  up 
"low  company",  frequenting  public-houses,"  &c.  The  court  held 
that  it  was  such  a  condition  as  it  would  carry  into  effect ;  and  the 
evidence  not  being  conclusive,  an  inquiry  was  directed,  following 
the  words  of  the  bequest  (&).  But  where  an  allowance  was  be- 
queathed to  a  feme  covert,  on  condition  that  she  lived  apart  from 
her  husband,  the  court  held  the  bequest  to  be  good,  and  the  condi- 
tion void,  as  contra  bonos  mores  (J).  (1) 

A  legacy  was  given  to  three  persons,  to  be  paid  as  soon  as  the 
legatees  should  arrive  in  England,  or  claim  the  same,  provided 
they  should  arrive  or  claim  the  same  within  three  years  after  the 
testator's  death  ;  and  if  they  should  not,  part  of  the  amount  of  the 
legacies  to  go  over.  The  legatee  over  claiming  the  legaey,  a  re- 
ference was  directed  to  the  Master,  to  enquire  whether  the  three 
persons  had  arrived  in  England,  or  claimed  the  legacy  within  the 
three  years  (m).  Afterwards,  one  of  the  legatees  arrived  in  Eng- 
land, and  made  his  claim  after  the  time  specified  :  it  was  held,  the 
condition  was  not  performed,  although  the  legatee  was  ignorant 
till  then  of  the  will,  or  of  the  testator's  death,  and  no  advertise- 
ment had  been  made  for  legatees  (?i). 

Where  a  legacy  was  given  on  condition,  that  the  legatee  married 
with  the  consent  in  writing  of  the  executors,  and  he  afterwards 
married  with  their  approbation,  but  it  was  not  expressed  in  writing: 
it  was  held,  that  the  legatee  was  entitled  to  the  legacy,  and  that 
the  consent  of  an  executor  who  had  not  acted  was  not  necessary  (o). 

A  legacy  was  given  upon  condition  that  the  legatee  notified  to 
the  executor  of  the  testator  his  willingness  to  release  certain  claims, 
and  he  filed  his  bill.  The  court  held  that  he  had  forfeited  his  right 
to  the  legacy  ( p).  But  where  a  testator  gave  to  his  son  for  life 
the  interest  of  a  mortgage  upon  an  estate  of  which  he  was  tenant 
for  life  in  remainder  at  the  testator's  death,  and  also  the  furniture 
in  certain  houses,  upon  condition  of  his  executing  a  release  of  all 
claims  he  might  have  upon  the  testator's  estate,  and  of  his  not 
contesting  the  will,  though  the  son  lived  fourteen  months  after  the 

(k)  Tattersall    v.    Howell,    2    Men.  (n)  Burgess    v.  Robinson,   3    Meri. 

Rep.  26.  Rep.  7. 

(/)  Brown  v.  Reck,   1  Eden's  Rep.  (o)  Worthington  v.  Evans,  1  Sim.  & 

140.  Stu.  165. 

(?n)  Burgess   v.  Robinson,  1  Madd.  (p)  Vernon  v.  Bcthell,  2  Eden's  Rep, 

172.    and  see  Careless  v.   Careless,    1  110. 
Meri.  Rep.  384.  and  S.  C.  19  Ves.  601. 

(1)  A  testator,  by  his  will  dated  September  25th  1815,  gave  to  his  daughter, 
"during  her  separation  from  W.  C.  her  husband,  one  thousand  dollars  a  year," 
which  he  charged  on  his  real  estate.  W.  C.  and  his  wife  were  living  separate 
when  the  will  was  made,  but  cohabited  together  in  February  1815,  when  the 
testator  made  a  codicil  to  his  will  (changing  only  the  executors),  and  also  at  his 
death,  but  separated  immediately  after  his  decease,  and  continued  to  live  sepa- 
rate until  within  a  short  time  previous  to  filing  the  bill  by  W.  C.  and  his  wife, 
against  the  executors  for  the  legacy.  Held,  that  the  plaintiffs  were  not  entitled 
to  the  legacy.  Cooper  ct  itx.  v.  Iiemsen,  3  Johns.  Cha.  Rep.  382.  521.  S.  C.  5 
Johns.  Cha.  Rep.  459. 


314  OF  THE  PAYMENT  OF  LEGACIES.        [BOOK   III. 

testator's  death  without  executing  a  release,  and,  upon  his  first  hear- 
ing the  will,  had  expressed  his  dissatisfaction,  and  an  intention  of 
filing  a  bill;  yet  the  circumstance  of  his  never  having  paid  any  part 
of  the  interest  of  the  mortgage,  his  having  entered  into  possession 
of  the  furniture,  and  exercised  acts  of  ownership,  together  with 
certain  expressions  of  assent  in  his  letters,  were  held  to  be  evidence 
of  his  acceptance  (g). 

A  testator  authorised  his  executors,  at  any  time  before  T.  L.  at- 
tained the  age  of  twenty-six  years,  to  raise,  by  sale  of  a  sufficient 
part  of  certain  stock,  any  sum  of  money  not  exceebing  600/. ,  and 
to  pay  and  apply  the  same  towards  the  preferment  or  advancement 
in  life,  or  other  the  occasions  of  T.  L.  as  the  said  executors  should 
think  proper  ;  and  at  the  age  of  twenty-six  he  gave  the  600/.  to 
T.  L.  absolutely.  The  executors  declined  to  act,  and  the  court 
refused  to  give  the  600/.  to  T.  L.  before  twenty-six,  without  refer- 
ring it  to  the  Master  to  inquire  whether  T.  L.'s  situation  required 
the  600/.  or  any  part  thereof  to  be  advanced  (r). 

The  next  object  of  inquiry  is,  to  whom  a  legacy  shall  be  paid. 
And  here  the  executor  must  be  careful  to  pay  it  into  that  hand 
which  has  authority  to  receive  it. 

It  is  a  general  rule,  that  he  has  no  right  to  pay  it  to  the  father, 
or  any  other  relation  of  an  infant,  without  the  sanction  of  a  court 
of  equity  (s);  (1)  and  even  in  the  case  of  an  adult  child,  such  pay- 
ment is  not  good,  unless  it  be  made  by  the  consent  of  the  child,  or 
be  confirmed  by  his  subsequent  ratification  (/). 

Cases  occur  where  an  executor  has,  with  the  most  honest  inten- 
tions, paid  the  legacy  to  the  father  of  the  infant,  and  has  been  held 
liable  to  pay  it  over  again  to  the  legatee  on  his  coming  of  age. 
And  although  such  cases  have  been  attended  with  many  circumstan- 
ces of  hardship  in  respect  to  the  executor,  yet  he  has  been  held  re- 
sponsible, on  the  policy  of  obviating  a  practice  so  dangerous  to 
the  interest  of  infants,  and  so  naturally  productive  of  domestic 
discord.  The  child  must  in  case  of  such  payment  either  acqui- 
esce, or  resort  to  the  father;  or,  which  is  in  effect  the  same,  insti- 
[315]  tute  a  suit  against  the  exeeutor,  who  will  of  course  require 
the  father  to  refund  (w).  Thus  legacies  of  one  hundred  pounds 
a-piece  were  bequeathed  to  four  infants;  the  executor  paid  the  le- 
gacies 1o  the  father,  and  took  his  receipt  for  them  :  when  one  of 
the  legatees  came  of  age,  who  was  about  ten  years  old  at  the  time 
of  payment,  the  father  told  him,  that  he  had  such  a  legacy  of  his  in 
his  hands,  but  could  not  pay  it  immediately,  and  requested  him  not 
to  apply  to  the  executor,  at  the  same  time  promising  that  he  would 

(7)  Earl  of  Northumberland  v.  Mar-  Thornton,  3  Bro.  Ch.  Rep.  97. 

qiiis  of  Gi-anby,  1  Eden's" Rep.  489.  (u)  1  Eq.  Ca.  Abr.  300.     Cooper  v. 

(-/•)  Lewis  v.Lewis,  1  Cox's  Rep.  162.  Thornton,  3  Bro.  Ch.  Rep.  96.  186.     4 

(s)  4  Bac.  Abr.  429.   1  Chan.  Ca.  245.  Burn.  Eccl.  L.  321.     Holloway  v.  Col- 

(/)    4    Bac.    Abr.    431.     Cooper    v.  lins,  Chan.  Ca.  245.     3  Ch.  Ca.  168. 


(1)  Genet  v.  Tallmad'ge,  Morrellv.  Dickey,  1  Johns.  Cha.  Rep.  3,  153. 


CHAP.  IV.]       OF  THE  PAYMENT  OF  LEGACIES.  315 

himself  pay  it.  The  son  acquiesced  for  fourteen  or  fifteen  years, 
during  which  period  his  father  and  he  carried  on  a  joint  trade,  and 
then  became  bankrupts.  On  a  commission  taken  out  against  the 
son,  this  legacy,  among  other  things,  was  assigned  for  the  benefit 
of  his  creditors  ;  and  the  assignee  filed  a  bill  against  the  executor, 
for  an  account  and  payment  of  the  legacy,  when  it  was  decreed  ac- 
cordingly by  the  Master  of  the  Rolls,  but  without  interest;  and  the 
decree  affirmed  by  the  Lord  Chancellor  on  an  appeal.  His  lord- 
ship, however,  on  the  hardship  of  the  case,  ordered  the  deposit  to 
be  divided  (/).  It  appears  from  the  registrar's  book,  that  in  the 
above  case  evidence  was  read,  that  the  testator  on  his  death-bed 
gave  direction,  that  the  executor  should  pay  the  legacies  to  the 
father  of  the  infants,  that  he  might  improve  the  money  for  their 
[316]  benefit  (n).  But  although  that  circumstance,  if  true,  ren- 
dered the  case  still  harder,  yet  it  could  not  influence  the  decision, 
since  the  evidence  ought  not  to  have  been  received.  It  were  dan- 
gerous to  admit  proof,  that  a  legacy  given  to  one  person  was  order- 
ed to  be  paid  to  another  (w).  If  the  direction  had  appeared  on 
the  face  of  the  will,  the  decree,  doubtless,  would  have  been  differ- 
ent (x).  So,  where  A.  left  a  legacy  of  a  hundred  pounds  to  each 
of  the  three  children  of  B.  and  appointed  C.  her  executor,  leav- 
ing him  the  bulk  of  her  estate,  provided  he  paid  those  three  lega- 
cies within  a  year  after  her  death  :  The  defendant  within  that  pe- 
riod paid  into  the  children's  own  hands  their  several  legacies  ;  the 
eldest  of  whom  was  then  sixteen  years,  the  second  fourteen,  and 
the  youngest  only  nine  :  on  her  coming  of  age,  they  filed  a  bill 
against  the  executor  to  be  paid  their  respective  legacies;  suggesting 
that  their  father  had  embezzled  the  money,  and  was  insolvent,  and 
that  the  payment  was  a  fraud  :  The  defendant  in  his  answer  deni- 
ed all  knowledge  of  the  money's  ever  having  come  to  the  father's 
hands*  The  Lord  Chancellor  held  at  first,  that  as  the  executor 
paid  these  legacies  to  save  a  forfeiture  of  what  he  himself  took  un- 
der the  will,  he  ought  not  to  pay  them  over  again  ;  but,  on  farther 
consideration,  conceiving  the  point  to  be  very  doubtful,  his  lord- 
ship recommended  a  compromise  ;  and  the  defendant  agreeing  to 
[317]  pay  fifty  pounds,  to  be  divided  between  the  three  plaintiffs, 
without  costs  on  either  side,  they  were  ordered  to  release  their  le- 
gacies (y). 

The  rule,  however,  is  not  so  harsh,  as  that  in  all  possible  cases 
an  executor  shall  be  liable  to  pay  over  again  legacies  of  infants, 
which  he  shall  have  paid  to  their  parents  (z).  Thus,  where  A. 
bequeathed  to  J.  S.  a  hundred  pounds  to  be  equally  divided  be- 
tween himself  and  his  family,  the  executrix  paid  the  legacy  to  J.  S. 

(t)  Dagley  v.  Tolferry,  1  Eq.  Ca.  Ab.  v.  Thornton,  3  Bro.  Ch.  Rep.  96. 
300.    1  P.  Wms.  285.  S.  C.    Gilb.  Rep.  (w)  Cooper  v.  Thornton,  3  Bro.  Ch. 

103.  S.  C.    4  Burn.  Eccl.  L.  321.   S.  C.  Rep.  96.     Vid.  Maddox  v.  Staines,  2  P. 

Vid.  also  Philips  v.  Paget,  2  Atk.  81.  Wms.  421. 
and  Cooper  v.  Thornton,    2  Bro.  Ch.         (x)  Vid.  infr. 
Rep.  96.  (y)  Philips  v.  Paget,  2  Atk.  80,  81. 

(w)  1  P.  Wms.  286.  in  note.    Cooper         (z)  Ibid.  81. 


317  OF  THE  PAYMENT  OF  LEGACIES.         [BOOK  III. 

who  had  a  wife  and  seven  children,  six  of  whom  are  adults,  and 
the  seventh  an  infant :  Eleven  years  after  the  youngest  had  come 
of  age,  and  the  legacy  never  having  been  demanded,  they  filed 
their  bill  against  the  executrix  for  the  same,  insisting  that  the  pay- 
ment to  their  father  was  invalid  :  It  was  held,  that  according  to  the 
terms  of  the  will,  the  legacy  was  properly  paid  to  J.  S.  ;  and  that 
it  belonged  to  him  as  trustee  to  divide  it  :  And  even  on  supposi- 
tion, that  the  payment  was  wrong,  the  great  laches,  and  long  ac- 
quiescence of  the  plaintiffs  precluded  them  from  all  remedy  (a). 
But  where  A.  bequeathed  his  personal  estate  to  trustees,  in  trust 
to  pay  six  hundred  pounds  to  an  infant,  and  directed  that  such  of 
his  legatees  as  might  be  infants  at  the  time  of  his  decease,  should 
receive  interest  at  the  rate  of  five  per  cent,  till  their  respective 
leo-acies  should  be  paid,  namely,  at  their  age  of  twenty-one  years; 
it  was  holden,  that  the  executors  could  not  justify  paying  any  part 
[318]  of  the  principal  to  the  infant,  or  to  his  use,  before  that  time, 
except  for  absolute  necessaries  {b). 

In  case  a  legacy  be  too  inconsiderable  in  point  of  value,  to  bear 
the  expence  of  an  application  to  the  court  of  chancery,  it  seems 
an  executor  will  be  justified  in  paying  it  into  the  hands  of  the  in- 
fant, or,  which  amounts  to  the  same  thing,  to  the  father  (c);  but  in 
o-eneral  he  is  not  warranted  in  so  doing,  unless  he  be  clearly  au- 
thorized by  the  will.  And  if  a  suit  be  instituted  in  the  spiritual 
court  for  an  infant's  legacy  by  the  father  to  have  it  paid  into  his 
hands,  an  injunction  (d),  or  prohibition  (e),  will  be  granted. 

But  an  executor  may  discharge  himself  from  all  responsibility 
on  this  head  by  virtue  of  the  stat.  36  Geo.  3.  c.  52.  §  32.  by 
which  it  is  enacted,  that  where,  by  reason  of  the  infancy,  or  ab- 
sence beyond  the  seas,  of  any  legatee,  the  executor  cannot  pay  a 
legacy  chargeable  with  duty  by  virtue  of  that  act,  (that  is  to  say) 
o-iven  by  any  will  or  testamentary  instrument  of  any  person  who 
shall  die  after  the  passing  of  that  act,  it  shall  be  lawful  for  him  to 
pay  such  legacy,  after  deducting  the  duty  chargeable  thereon,  in- 
to the  Bank  of  England,  with  the  privity  of  the  accountant-gene- 
ral of  the  court  of  chancery,  to  be  placed  to  the  account  of  the  le- 
gatee, for  payment  of  which  the  accountant-general  shall  give  his 
[319]  certificate,  on  production  of  the  certificate  of  the  commission- 
ers of  stamps  that  the  duty  thereon  hath  been  duly  paid  ;  and  such 
payment  into  the  bank  shall  be  a  sufficient  discharge  for  such  lega- 
cy, which  when  paid  in  shall  be  laid  out  by  the  accountant-gene- 
ral in  the  purchase  of  3  per  cent,  consolidated  annuities,  which, 
with  the  dividends  thereon,  shall  be  transferred  or  paid  to  the  per- 
son entitled  thereto,  or  otherwise  applied  for  his  benefit,  on  appli- 

(«)  Cooper  v.  Thornton,  3  Bro.  Ch.  v.  Seton,  2Bro.  Ch.  Rep.  613.    Off.  Ex. 

Rep.  96.  219,  220.     Bilson  v.  Saunders,  Bunb. 

(/,)  4  Bac  Abr.  433.    Daviesv.  Aus-  240. 

ten,  3  Bro.  Ch.  Rep.  178.  (d)  Rotheram  v.  Fanshaw,  3  Atk.629. 

(c)  4  Burn.  Eccl.  L.  321.     1  Ch.  Ca.  Per  L<L  Hardwicke,  C.  arguendo. 

245.     Philips  v.  Pag-et,  2  Atk.  81.  Com.  (?)  4  Rac.  Abr.  429.  in  note.     Godb, 

Dig-.  Chancery,  (3  G.  6.)     Vid.   Seton  213. 


CHAP.  IV.]       OF  THE  PAYMENT  OF  LEGACIES.  319 

cation  to  the  court  of  chancery  by  petition,  or  motion,  in  a  sum- 
mary way. 

But  the  executor  is  not  bound  so  to  pay  the  legacy  into  the  bank 
till  the  expiration  of  a  year  from  the  testator's  death. 

Where  personal  property  is  bequeathed  for  life,  with  remainder 
over,  and  not  specifically,  it  is  a  general  rule  that  it  be  converted 
into  3  per  cents,  subject  in  the  case  of  a  real  security  to  an  inquiry, 
whether  it  will  be  for  the  benefit  of  all  parties  (/). 

But  this  general  rule  docs  not  attach  upon  property  of  a  testator, 
who  makes  his  will,  and  dies  in  India,  leaving  property  and  a  fa- 
mily there,  unless  the  parties  come  to  this  country,  and  then  the 
person  in  remainder  is  entitled  to  have  the  fund  brought  here  and 
invested  (g). 

It  has  been  decided,  that  if  an  executor  have  a  general  power  to 
divide  a  sum  of  money  among  children  at  his  discretion,  and  he 
make  an  unreasonable  disposition,  it  will  be  controlled  in  a  court 
of  equity  (A).  As,  where  A.  having  two  daughters,  one  by  a 
former  marriage,  and  the  other  by  a  second,  devised  his  estate  to 
his  wife,  to  be  distributed  between  his  daughters  as  she  should 
think  fit,  and  she  gave  a  thousand  pounds  to  her  own  daughter,  and 
only  a  hundred  to  the  other;  an  equal  distribution  was  decreed  («). 
In  like  manner  where  A.  having  appointed  his  two  daughters  his 
executrices,  gave  them  four  hundred  pounds,  to  be  distributed 
among  themselves  and  their  brothers  and  sisters,  according  to  their 
necessity,  as  the  executrices,  in  their  discretion,  should  think  fit; 
the  court  settled  the  distribution,  and  decreed  a  double  share  to  one 
[320]  of  the  children,  as  standing  in  greater  need  of  it  (k).  But 
where  the  testator  left  a  legacy  to  his  wife,  and  executrix,  to  be 
disposed  of  among  their  children  in  such  manner  as  she  should  think 
fit;  it  was  held  that  if  she  make  an  inequality,  the  court  will  not 
enter  into  the  motives  of  it  unless  it  be  illusory,  and  if  she  give  a 
mere  trifle  to  one  of  them;  and  even  in  that  case  if  the  child's  mis- 
behaviour has  been  very  gross,  it  shall  not  be  varied.  And  it  seems 
now  settled,  that  in  cases  where  an  executor  has  such  a  discretion- 
ary power,  he  may  give  a  larger  share  to  one  of  the  objects  than  to 
another,  provided  the  share  of  both  be  substantial,  and  not  illusory 
or  merely  nominal  (/). 

Where  a  legacy  was  given  to  A-,  but  if  the  executors  after  named 
should  think  it  more  for  his  advantage  to  have  it  placed  out  and  to 

(/)  Howe  v.  Earl  of  Dartmouth,  7  (/r)  Com.  Dig-.  Chan.  (4  W.  11.)  City 

Ves.  jun.  137.  of  London  v.  Richmond,  2  Vera.  421. 

(g)  Holland  v.  Hughes,  16  Ves.  jun.  (/)  Maddison  v.  Andrews,  1  Ves.  57. 

111.  vid.    also  Alexander   v.   Alexander,    2 

(//)  4  Bac.  Abr.  340.    Gibson  v.  Kin-  Ves.  640.     Swift  v.  Gregson,   1  Term 

ven,  1  Vern.  66.     Thomas  v.  Thomas,  Rep.  432.     Nisbett  v.  Murray,  5  Ves. 

2  Vera.  513.      Alexander  v.  Alexander,  jun.  149.     Long-more  v.  Broom,  7  Ves. 

2  Ves.  640.  Upton  v.  Prince,  Ca.  Temp.  jun.    124.  and  Butcher  v.  Butcher,  9 

Talb.  72.  Ves.  jun.  382. 

(/')  Wall  v.  Thurborne,  1  Vern.  355. 


320  OF  THE  PAYMENT  OF  LEGACIES.        [BOOK  III. 

pay  him  the  interest  for  life,  as  they  in  their  discretion  should  think 
fit,  and  directing  that  after  his  disease  the  said  sum  should  be  di- 
vided among  his  children,  and  for  default  of  children  over:  one  of 
the  executors  being  dead,  and  the  other  having  renounced,  the  le- 
gacy was  held  to  be  absolute  in  the  legatee  (ra). 

A  testator  expressed  his  will  and  desire,  that  one-third  of  the 
principal  of  his  estate  and  effects  should  be  left  entirely  to  the  dis- 
posal of  his  wife,  among  such  of  her  relations  as  she  might  think 
proper,  after  the  death  of  his  sisters.  The  wife  died  without  making 
any  disposition,  and  it  was  held  a  trust  for  the  next  of  kin  at  the 
time  of  her  death  (n). 

If  a  legacy  be  given  to  a  married  woman,  it  must  be  paid  to  the 
husband.  So  where  a  legacy  was  given  to  a  married  woman  living 
separate  from  her  husband  with  no  maintenance,  and  the  executor 
paid  it  to  the  wife,  and  took  her  receipt  for  it,  yet  on  a  suit  insti- 
tuted by  the  husband  against  the  executor,  he  was  decreed  to  pay 
it  over  again  with  interest  (o).  It  hath  also  been  adjudged,  that  if 
the  husband  and  wife  are  divorced  a  ??iensd  et  thoro  and  the  legacy 
[321]  is  left  to  her,  the  husband  alone  may  release  it  {p)  ;  and,  con- 
sequently to  him  alone  it  is  payable.  But  the  executor,  in  cases 
where  the  husband  has  made  no  provision  for  the  wife,  may  decline 
paying  such  legacy,  if  it  amount  to  the  sum  of  two  hundred  pounds, 
unless  he  will  make  an  adequate  settlement  on  her  (q).  Nor  will 
the  court  of  chancery  interpose  in  his  favour,  but  on  the  same 
terms  {?');  unless  the  wife  appear  in  court  and  consent  to  his  re- 
ceiving it  (s).  And  if  a  woman,  who  is  or  has  been  married,  is 
entitled  to  a  legacy,  tfie  court  expects  a  positive  affidavit,  that  the 
legacy  has  not  been  in  any  manner  settled,  before  it  will  direct 
payment  to  her  (t). 

Nor  does  the  court  confine  its  interposition  in  favour  of  the  wife, 
and  compel  a  provision  for  her  against  those  persons  only,  who  are 
seeking  to  obtain  her  property  by  the  assistance  of  the  Court;  but 
in  extension  of  the  principle  of  those  cases,  in  which  equity  restrains 
the  husband  from  proceeding  in  the  ecclesiastical  court,  because  that 
jurisdiction  cannot  enforce  a  settlement  for  the  wife,  will  entertain 
a  bill  by  a  married  woman  against  an  executor  or  administrator,  and 
the  husband  praying  for  a  provision  out  of  a  legacy  bequeathed  to 

(m)  Keates  v.  Burton,  14  Ves.  jun.  4.    S.  C.  Ld.  Raym.  73.   S.  C.  5  Mod. 

434.  69.  and  12  Mod.  89. 

(«)  Birch  v.  Wade,  3  Ves.  &  Bea.  (q)  Lady  Elibank    v.  Montolieu,    5 

198.  Ves.  jun.  742.  in  note. 

(0)  Palmer  v.  Trevor,  1  Vern.  261.  (r)  Alilner  v.    Colmar,    2"  P.  Wins. 

4  Burn.  Eccl.  L.  332.     L.  of  Test.  265.  639.     Adams  v.  Peirce,  3  P.  Wms.  11. 

(p)  4  Bac.  Abr.  433.     1   Roll    Abr.  Brown  v.  Elton,  ib.  202. 

343.     2  Roll.  Abr.  301.  S.  C.  Moore,  (s)  Willats  v.  Cay,  2  Atk.  67.     Mil- 

665.    Rye  v.  Fuljambe,  683.    Stephens  ncr  v.  Calmer,   2  P.  Wms.  641.     Par- 

v.  Totty,  Cro.  Eliz.  908.     Stephens  v.  sons  v.  Dunne,  2  Ves.  60.     Sed  vid.  ex 

Totty,  Noy,  45.     Motam  v.   Motam,  1  parte  Higham,  2  Yes.  579. 

Roll.   Rep.   426.    S.  C.    5  Buls.   264.  (/)  Hough  v.  Ryley,    2  Cox's  Rep. 

Chamberlain  v.  Hewson,  Salk.  115.  pi.  157. 


CHAP.   IV.]       OF  THE  PAYMENT  OF  LEGACIES,  321 

her,  or  out  of  a  share  of  an  intestate's  estate  to  whom  she  is  next  of 
kin  (u). 

If  a  legacy  be  left  to  the  senior  six  clerk,  to  he  divided  between 
himself  and  the  other  six  clerks,  it  seems  that  it  ought  to  be  paid 
to  the  senior,  and  that  it  would  not  be  incumbent  on  the  executor 
to  make  any  enquiry  respecting  the  others  (w). 

Commissioners  of  Bankrupt  may  assign  a  legacy  left  to  a  bank- 
rupt before  his  bankruptcy  (V);  and  although  it  be  left  after  his  cer- 
tificate has  been  signed  by  the  creditors  and  commissioners,  if  be- 
fore its  allowance  by  the  Lord  Chancellor  (y);  consequently,  in 
such  case  the  legacy  must  be  paid  to  the  assignees. 

Although,  as  it  has  been  already  stated,  payment  by  an  executor 
of  a  debt  by  simple  contract,  before  the  breach  of  the  condition  of 
a  bond,  is  good,  and  shall  not  be  impeached  by  its  happening  after- 
wards (z),  yet  payment  of  a  legacy  under  the  same  circumstances 
[322]  shall  not  be  allowed.  It  was,  indeed,  formerly  held,  that 
such  bond  should  not  hinder  the  payment  of  a  legacy,  because  it 
was  uncertain  whether  the  bond  would  be  ever  forfeited,  but  that 
the  executor  should  pay  the  legacy  conditionally,  and  take  security 
of  the  legatee  to  refund  in  the  event  of  a  forfeiture  of  the  obliga- 
tion («).  And  in  all  cases,  where  a  suit  was  instituted  in  the  spi- 
ritual court  to  compel  an  executor  to  pay  a  legacy  without  a  secu- 
rity from  the  legatee  to  refund  in  case  of  a  deficiency  of  assets,  the 
court  of  chancery  would  grant  a  prohibition  (b)  :  yet  that  practice 
no  longer  exists.  Equity  will  not  now  interfere  (c),  but  will  com- 
pel a  legatee  to  refund,  where  the  estate  proves  insufficient,  whe- 
ther security  has  been  given  for  such  a  purpose  or  not  (d). 

A  legacy  must  be  paid  in  the  currency  of  the  country,  in  which 
the  testator  was  resident  at  the  time  of  making  the  will.  Thus  it 
has  been  decided,  that  where  a  party  living  in  Ireland,  or  in  the 
West  Indies,  gives.legacies  by  his  will  generally,  they  are  payable 
according  to  the  currency  of  those  respective  countries  (e).  Nor  is 
the  case  varied  by  the  legatee's  residing  in  England  ,(/*)  ;  nor  by 
[323]  the  testator's  havingleft  effects  partly  here  and  ptrtly  abroad, 
unless  he  shall  have  separated  the  funds,  and  charged  the  legacies 

(u)  Lady  Elibank    v.  Montolieu,    5  (b)  4  Burn.  Eccl.L.  332,  333.  Grove 

Ves.jun.  737.     See  'Wright  v.  Butter,  v.  Banson,   1  Chan.  Ca.  149.     Noel  v. 

2  Ves.  jwn.  276.     Meales  v.  Meales,  5  Robinson,  2  Ventr.  358.    S.  C.  1  Vern. 

Ves.  jun.    517.    in  note,  and  Carr  v.  93. 

Taylor,  10  Ves.  jun.  578.  and  infr.  490.  (c)  Anon.  1  Atk.  491.     Hawkins  v. 

(w)  Per  M.  R.  argiiendo,  Cooper  v.  Day,  Ambl.  160. 

Thornton,  3  Bro.  Ch.  Rep.  99.  (d)  Noel  v.  Robinson,  1  Vern,  93,  94. 

(x)  Cooke's  B.  L.  371.     Com.  Dig.  Hawkins  v.  Day,  Ambl.  162. 

Bankrupt  (D.  16.)     Toulson  v.  Grout,  (e)  Holditchv.  Mist,  1  P.  Wms.  696, 

2  Vern.  433.  note  2.  2  P.  Wms.  88,  89.  note  1.  Saun- 

(y)  Tredway  v.  Bourn,  2  Burr.  716.  ders  v.  Drake,  2  Atk.  465.     Pearson  v, 

(z)  Supr.  282.  Garnet,  2  Bro.  Ch.  Rep.  38.     Malcolm 

(a)  3  Bac.  Abr.  84.   1  Roll.  Abr.  928.  v.  Martin,  3  Bro.  Ch.  Rep.  50.    Cocke- 

4-  Burn.  Eccl.  L.  332,     Noel  v.  Robin-  rell  v.  Barber,  16  Ves.  jun.  461. 

son,  2  Ventr.  358,  (/)  Saunders  v.  Drake,  2  Atk.  466, 


323  OF  THE  PAYMENT  OF  INTEREST  [lioOK   11  f. 

on  his  English  property  {g),  If  he  has  given  some  legacies  describe, 
ed  as  sterling,  and  others  without  such  description,  the  former  are 
payable  in  sterling  money,  the  latter  in  the  currency  of  the  country 
where  the  testator  resided  {h).  In  like  manner,  if  a  testator  living 
in  England  bequeath  a  legacy,  whether  of  a  single  sum  of  money, 
or  of  an  annuity  charged  on  lands  in  another  country,  it  shall  be  paid 
in  England,  and  in  English  money,  and  without  any  deduction  for 
the  expences  of  its  remittance  (J,). 

In  regard  to  the  payment  of  interest  on  a  legacy,  it  was  formerly 
held,  that  in  case  of  a  vested  legacy  charged  on  lands  .yielding  im- 
mediate profits,  and  no  time  of  payment  mentioned  in  the  will,  in- 
terest should,  in  respect  of  such  profits,  be  made  payable  from  the 
death  of  the  testator  (k)  ;  or  that  a  legacy  given  out  of  a  personal  es- 
tate consisting  of  mortgages  bearing  interest,  or  of  money  in  the 
public  funds,  the  dividends  of  which  are  paid  half-yearly,  should 
for  the  same  reason  carry  interest  from  the  same  period  (/) ;  or  that 
interest  on  a  specific  legacy,  where  it  produces  interest,  should  be 
computed  from  the  time  of  the  testator's  death  :  It  being  severed 
from  the  rest  of  his  estate,  and  specially  appropriated  for  the  bene- 
[324]  fit  of  the  legatee,  it  should  therefore  carry  interest  immedi- 
ately {m).  But  if  a  legacy  were  given  generally  out  of  a  personal 
estate,  and  no  time  specified  by  the  testator,  such  legacy  should  car- 
ry interest  only  from  the  expiration  of  the  year  next  after  his  de- 
cease, (1)  on  the  principle  that  the  executor  might  be  reasonably  al- 
lowed that  time  for  the  collecting  of  the  effects  {?i).  So  it  was  held, 
that  if  a  legacy  were  given,  charged  on  a  dry  reversion,  it  should 
carry  interest  from  a  year  next  after  the  death  of  the  testator  :  inas- 
much as  a  year  was  a  competent  time  for  a  sale  (o).  But  the  rule 
that  the  payment  of  interest  should  depend  on  the  fund's  being  pro- 
ductive or  barren,  is  now  exploded  :  and,  generally  speaking,  inter- 
est for  a  legacy  is  payable  only  from  a  year  aflrer  the  death  of  the 
testator:  (2)  Although  he  should  have  left  stock  only,  and  no  other 
property,  yj;t  now  no  interest  would  be  given,  upon  legacies  be- 
queathed by  him,  till  the  end  of  a  year  next  after  his  death  {p). 

(g)  Ibid.    Pearson  v.  Garnet,  2  Bro.  Atk.  108.     Beckford  v.  Tobin,  1  Ves. 

Oh.  Rep.  47.  308.     Bilson  v.  Saunders,  Bunb.  240. 

(h)  Saunders  v.  Drake,  2  Atk.  465.  Stonehouse  v.  Eyelyn,  3  P.  Wms.  253. 

Pearson  v.  Garnet,  2  Bro.  Ch.  Rep.  38.  (m)  Lawson  v.   Stitch,  1  Atk.  508. 

Malcolm  v.  Martin,  3  Bro.  Ch.  Rep.  50.  Sleech  v.  Thorington,  2  Ves.  563. 

(t)  Wallis  v.  Brig-htwell,  2  P.  Wms.  (n)   Maxwell   v.    Wettenhall,    2  P. 

88.     Holditch  v.  Mist,  1  P.  Wms.  696.  Wms.  26,  27.  Lloyd  v.  Williams,  2  Atk. 

(k)  4  Bac.  Abr.    439.     Maxwell    v.  108. 

Wettenhall,  2  P.  Wms.  26.   2  Bl.  Com.  (o)  Maxwell  v.  Wettenhall,  2  P.  Wms. 

513.  26.      ' 

(/)  Maxwell  v.  Wettenhall,  2  P.  Wms.  (p)  Gibson  v.  Bott,  7  Ves.  j an.  96, 

26.  and  note  2.     Lloyd  v.  Williams,  2  97. 

(1)  1  Binn.  475.     14  Serg.  &  Rawle,  238. 

(2)  See  Cogdejl's  Ex.  v.  Cogdell's  Heirs,  3  Desaus.  Rep.  387.     Ingraham  v. 
I'udclVs  Ex.,  Gillon  v.  Tumbull,   1  M'Cord's  Cha.  Kep.  94,  148. 


CHAP.   IV.]  ON  LEGACIES.  324 

Simple  contract  debts  of  another  person,  charged  by  the  will  of 
a  testator  upon  his  real  estates,  are  legacies,  and  carry  interest  from 
the  death  of  the  testator  at  A  per  cent.  (o). 

If  an  annuity  be  given  by  the  will,  it  shall  commence  immediate- 
ly from  the  testator's  death,  and,  consequently,  the  first  payment 
shall  be  made  at  the  expiration  of  a  year  next  after  that  event.  But 
if  a  sum  of  money  be  directed  by  the  will  to  be  placed  out  to  pro- 
duce an  annuity,  whether  that  is  to  be  considered  as  a  legacy  paya- 
ble at  the  end  of  the  }Tear  as  an  annuity  payable  from  the  testator's 
death,  seems  to  be  a  doubtful  point  (p). 

An  annuity  however,  given  by  will,  with  a  direction  that  it  shall 
be  paid  monthly,  the  first  payment  is  to  be  made  at  the  end  of  a 
month  after  the  testator's  death  (q).  (1). 

If  a  portion  of  the  testator's  estate  not  required  for  the  payment 
of  debts  and  legacies  be  invested  at  the  time  of  his  death  upon  se- 
curities carrying  interest,  the  tenant  for  life  of  the  residue  is  enti- 
tled to  such  interest  from  the  time  of  the  death  of  the  testator  (r). 

Although  the  interest  of  residue  goes  with  the  capital,  that  of 
particular  legacies  does  not,  even  supposing  it  to  be  the  payment, 
and  not  the  vesting,  that  is  postponed.  Therefore  where  no  direc- 
tion is  given  as  to  surplus  interest,  and  the  capital  is  made  payable 
at  a  future  time,  the  surplus  interest  falls  into  the  residue  (s). 

[325]  If  a  legacy,  whether  vested  or  not,  be  payable  on  a  certain 
day,  and  the  will  be  silent  in  respect  to  interest,  it  is  a  general  rule, 
that  the  interest  shall  commence  only  from  that  time  :  for  it  is  giv- 
en for  delay  of  payment,  and,  consequently,  till  the  day  of  payment 
arrives,  no  interest  can  accrue  to  the  legatee  (/).  (2)  Ilence,  as  we 
have  seen  (u),  if  a  legacy  be  left  to  A.  to  be  paid  at  twenty-one,  and 
he  die  before,  his  representative  shall  wait  till  he  would  have  at- 
tained that  age,  unless  it  were  made  payable  with  interest.  Nor  is 
it,  in  such  cases,  a  question  of  construction,  as  whether  the  pay- 
ment is  suspended  on  account  of  the  imbecility  of  the  party,  or  with 
a  view  to  the  benefit  of  the  estate.  The  rule  I  have  just  stated  is 
technical,  established  in  the  ecclesiastical  court,  and  adopted  by  the 

(0)  Shirt  v.Westby,  16  Ves.jun.  393.         (/)  Heath    v.    Perry,     3    Alk.    102. 
(/?)   Gibson  v.  Bott,  7  Yes.   jun.  °5,      Hearle  v.  Greenbank,  716.  S.  C.  1  Vez. 

97.  •  307.     Smell  v.  Dee,  2  Satlc.'  415.  pi.  2. 

(q)  Houghton  v.  Franklin,   1  Sim.  Ec  2  P.  Wins.  481.  note  1.     Green  v.  Pi- 

Stu.  390.  got,    1  Bro.  Ch.  Rep.  105.     Ashburner 

(r)  Angerstein    v.    Martin,    1  Turn.  v.  M'Guire,  2  Bro.  Ch.  Rep.  113.    Crick- 

232*     Hewitt  v.  Morris,  ib.  241.  ett  v.  Dolby,  3  Ves.  jun.  10.    Tyrrell  v. 

(s)  Leake  v.  Robinson,  2  Meiiv.  Rep.  Tyrrell,  4  Ves-.  jun.  1. 
384.  *(«)  Sdpr.  171.  313. 

(1)  So  where  one  bequeathed  to  his  daughter  A.  "the  interest  of  400£.  to  be 
paid  to  her  annually  during  her  natural  life,"  it  was  held  that  the  first  payment 
was  to  be  made  at  the  end  of  a  year  from  the  testator's  death.  Ei/rc  v.  Golding, 
5  Binn.  475. 

(2)  Bitzer's  Ex  \.  Hvhn  el  ux.  It  Serg.  &  Rawle,  232.  Lupfon  v.  Litpton, 
2  Johns.  Cha.  Rep   6J8      Dawes  v  Swan,  4  Mass.  Hep.  215. 


325  OF  THE  PAYMENT  OF  INTEREST  [llOOK  III. 

court  of  chancery  in  numerous  adjudications  (v).  If  legacies  are  giv- 
en to  A.  and  B. ,  each  to  be  paid  to  them  at  their  respective  ages  of 
23  years,  and  if  they  should  die  before  that  time,  then  their  respec- 
tive legacies  to  sink  into  the  residue  of  the  testator's  personal  es- 
tate, such  legacies  do  not  carry  interest,  and  no  maintenance  can  be 
allowed  to  the  legatees  {to).  But  if  a  legacy  be  given  to  A.  to  be 
paid  at  twenty-one,  and  if  he  should  die  before  attaining  that  age, 
then  to  B.,  and  A.  die  before  twenty-one,  several  years  after  the 
testator,  B.  is  entitled  to  interest  on  the  legacy  from  the  death  of 
A. ;  for  though  in  such  case  it  were  objected  that  this  being  as  a 
new  substantive  legacy  to  B.,  the  executor  ought  to  have  a  year's 
time  for  the  payment  of  it ;  yet  the  court  held,  that  must  be  intend- 
ed to  be  from  the  death  of  the  testator,,  whereas  in  that  case  the  tes- 
tator had  been  dead  much  longer  (x). 

But  the  principle  does  not  extend  to  all  cases  :  It  does  not  apply 
where  the  legatee  was  the  child  of  the  testator  :  there  the  court 
will  not  postpone  the  payment  of  interest,  even  till  a  year  after  the 
death  of  the  parent,  but  will  order  it  immediately  ;  since,  by  the 
law  of  nature,  he  was  obliged  to  provide  not  only  a  future  but  a  pre- 
sent maintenance  for  his  child,  and  shall  not  be  presumed  to  have 
meant  to  leave  him  destitute  {y).  (1)  But  if  a  father  gives  a  legacy 
to"a  child  payable  at  a  future  day,  and  makes  an  express  provision 
for  maintenance  out  of  another  fund,  the  legacy  shall  not  carry  in- 
terest until  the  time  of  payment  (z). 

So  where  a  testator  directed  his  executors,  as  soon  as  they  should 
think  proper  after  his  decease,  to  sell  as  much  stock  as  would  pro- 
duce 12,000/.,  and  invest  the  same  inland,  upon  trust  to  receive  the 
rents  of  the  land  when  purchased,  and  the  interest  and  dividend  of 
the  12,000/.  until  the  estate  was  purchased,  and  pay  the  same  in 
equal  moieties  between  his  two  daughters  for  their  lives,  with  re- 
mainder over  ;  the  Court  held,  that  the  daughters  were  not  to  take 
the  interest  until  the  12,000/.  was  raised  by  a  sale  of  the  stock,  and 
that  this  being  to  be  done,  "as  soon  as  the  executors  should  think 
proper  after  his  "decease,"  amounted  to  the  same  thing  as  a  direc- 
tion to  raise  and  pay  a  legacy  as  soon  as  the  executors  should  find  it 
convenient.  That  the  Court  adopted  a  year  as  the  rule  of  conveni- 
ence, and  that  the  legacy  therefore  could  not  be  raised  till  the  end 
of  the  year  (a). 

And  where  the  testator  devised  estates  in  Jamaica  to  trustees  and 
their  heirs,  in  trust  to  maintain  and  educate  his  sons  during  their 

(«)  Tyrrell  v.  Tyrrell,  -1  \ Vs.  jun.  3,  Heath  v.  Perry,  102.     Criekett  v.  Dol- 

4,5.  by,  3  Vcs.  jun.  13.     See  Chambers  v. 

(«.»)  Dcscrunibes  v.  Tomkins,  1  Cox's  Goldwin,  11  \  es.  jun.  1. 

Hep.  133.  (z)   Wvnch  \.  Wyueli,   1  Cox's  Rep. 

(./•)  Laun'h  v.  Williams,    2  P.  Wras.  433. 

481.  (<m   Benson  v.  Maude,  6  Madd.  Rep 

(y)  Butler    v.    Butler,    3    Atk.    60.  \o. 


l     I  pinn    t7  •      14  Serg  %  Rav  P 


CHAP.   IV.]  ON  LEGACIES.  325 

minority,  and  his  daughter  until  the  age  of  twenty-one  years,  01 
day  of  marriage,  which  should  first  happed,  and  subject  thereto, 
devised  the  estates  to  his  sons,  charged  with  the  payment  of  10,000/. 
to  his  daughter,  in  case  sh^e  should  live  to  attain  her  age  of  twenty- 
one  years,  the  same  to  carry  interest  from  the  time  of  her  attaining 
such  age  of  twenty-one,  at  the  rate  of  6/.  per  cent.,  and  to  be  paid 
by  instalments,  the  first  payment  to  be  made  when  and  if  she  should 
attain  twenty-one  ;  and  the  daughter  married  at  the  age  of  eighteen 
years.  Lord  Eldon  held,  that  the  testator  having  expressly  given 
interest  from  the  period  of  the  daughter's  majority  to  the  time  when 
the  legacy  was  to  be  paid,  could  not  mean  that  the  child  should  have 
nothing  during  the  interval  between  her  marriage  and  her  attaining, 
the  age  of  twenty-one  years,  and  therefore  decreed  her  a  reasonable 
maintenance  out  of  the  assets  for  that  period  (a). 

And  where  a  testator  gave  a  legacy  to  his  daughter,  to  be  paid  to 
her  at  twenty-one  or  marriage,  without  interest  for  the  same  in  the 
mean  time,  but  if  she  died  before  twenty-one  or  marriage,  then  the 
legacy  was  not  to  be  raised,  but  was  to  sink  into  the  residue  of  his 
personal  estate,  and  he  directed  that  out  of  the  interest  of  the  legacy 
certain  sums  of  money  should  be  applied  for  the  maintenance  of  his 
daughter  :  it  was  held  that  the  interest  of  the  legacy  beyond  the 
maintenance  was  vested  in  the  daughter,  and  must  accumulate  for 
her  benefit  (£>).• 

[326]  Whether  a  legatee,  if  a  natural  child,  be  also  comprised 
within  the  exception,  is  not  so  clear.  Lord  Hardwicke,  C.  express- 
ed an  opinion  in  the  negative,  as  well  on  the  principle  of  law,  which 
recognizes  no  relationship  in  such  child,  as  also  on  the  general  po- 
licy of  encouraging  marriage,  and  discountenancing  immorality  (c). 
In  a  recent  case,  the  Master  of  the  Rolls  intimated,  that  illegitimate 
children  were  to  be  admitted  to  the  same  benefit  (d).  But  in  a  sub- 
sequent case,  the  Court  of  Exchequer  held  that  they  are  not  (e).  If, 
however,  it  can  be  implied  from  the  wording  of  the  will  that  the  tes- 
tator intended  it,  interest  will  be  allowed  from  the  testator's  death  {/). 

Whether  a  grandchild  shall  be  thus  favoured,  is  a  point  likewise 
on  which  there  has  been  a  difference  of  opinion  :  such  advantage 
has  been,  in  several  instances,  detlicd  to  him  (g).  (1)  But  his  Ho- 
nour, in  the  case  just  alluded  to,  appears  to  have  considered  him  as 
on  the  same  footing  with  a  child  :  And  that  opinion  has  been  con- 

(«)  Chambers  v.  Goldwin,    11  Ves.  (e).  Lowndes   v.  Lowndes,    15  Yes, 

urn.  1.  flirt.  301. 

(i)  Carev  v.  Askew,  I  Cox's  Rep.  '(f)  Hill  v.  Hill,  3  Ves.  &  Bea.  f83. 
243.  (g)    Haughjon    v.  Harrison,  2  Atk. 

(c)   Hearlcv.  Greenbank,  1  Vez.  310.      i  >o'.     Butler  v.  Butler;  3  Atk.  59.     4 

{</)  Crickell  v.  Dolby,  3  Ves.  pin,  .  Bra.  Ch.  Rep.  149.  in  note,  and  Des 
12.  crambes  v.  Tomkins,  1  Cox's  Rep.  133. 


(1)  Sec  2  John*   Clia.   Kep.  628.      Van  Brantcr  v.   Hoffman"-  Ex.  2  Johns. 
a.  200. 


326  OF  INTEREST  ON  LEGACIES.  [BOOK  HI. 

tinned  by  subsequent  adjudications  (A).  The  widow  of  the  testa- 
tor will  not  be  entitled  to  interest  from  the  time  of  his  death  (i).  A 
legacy  to  a  nephew,  payable  at  twenty-one,  is  clearly  comprehend- 
ed under  the  general  rule,  and  shall  carry  interest  only  from  the 
time  of  payment  (k).  And  a  legacy  to  the  wife  of  a  nephew,  ex- 
pressly given  for  the  maintenance  of  herself  and  children,  she  be- 
ing separated  from  her  husband,  shall  only  carry  interest  from  the 
end  of  the  year  after  the  testator's  death  ;  and  the  court  considered 
it  would  be  introducing  a  new  rule,  particularly  as  the  legatee  was 
adult,  if  it  were  held  otherwise  (/ ).  But  the  rule  is  not  applicable 
to  a  bequest  of  a  residue,  subject  to  be  divested  on  a  contingency  ; 
lor  it  would  be  absurd  to  say  the  testator  meant  to  die  intestate  as 
to  the  produce,  when  he  has  given  a  vested  interest  in  the  capital  (m). 
If  a  legacy  be  left  to  an  infant  payable  at  twenty-one,  and  devised 
over  on  his  dying  before  he  attains  that  age,  and  such  event  happens, 
[327]  the  interest  accumulated  from  the  death  of  the  testator  to  that 
of  the  infant  shall  go  to  his  representative,  and  not  to  the  remain- 
der-man (?i).  And  where  legacies  were  given  to  infants,  payable 
at  twenty-one,  with  benefit  of  survivorship  in  the  event  of  death 
under  that  age,  and  a  power  to  the  executors  to  apply  any  part  of 
the  legacies  towards  the  maintenance  of  the  legatees,  the  legacies 
were  held  to  bear  interest  from  the  death  of  the  testatrix  ;  the  infants 
being  her  cousins,  and  destitute  of  other  provision  (o). 

If  the  father  of  an  infant  legatee  be  living,  he  is  bound  by  the 
municipal  law,  as  well  as  by  the  ties  of  nature,  to  maintain  his 
child.  (1)  Nor,  as  it  has  been  frequently  held,  shall  the  interest  of 
the  legacy  be  applied  to  that  purpose,  unless  in  cases  of  great  ne- 
cessity, arising  from  the  distressed  and  embarrassed  circumstances 
of  the  parent  (p).  (2)  In  cases  so  pressing  the  infant  shall  be  main- 
tained out  of  the  interest  of  the  legacy,  whether  it  be  vested  or  con- 
tingent ;  and,  although  the  legacy  be  devised  over  on  the  infant's 
dying  before  he  attains  twenty-one  (q).     Indeed,  in  some  recent 

(A)  Crickett  v.'Dolby,  3  Yes.  jun.  2  P.  Wms.  421.  note  1.  ibid.  504.   Green 

12.     5  Ves.  jun.  194,  195.  in  note.  Col-  v.  Ekins,    2  Atk.    473.      Chaworth  v. 

lins  v.  Blackburn,  9  Yes.  jun.  470.  and  Hooper,  1  Bro.  Ch.  Rep.  82.  ibid.  335. 

see  Hill  v.  Hill,  3  Yes.  &  Bea.  183.  Shepherd  v.  Ingram,  Ambl.  448.     Yid. 

(j)  Lowndes  v.  Lowndes,    15  Yes.  Butler  v.  Butler,  3  Atk.  59. 

jun.  301.      Stent  v.  Robinson,    12  Yes.  (n)  Pott  v.  Fellows,  1  Swans.  561. 

jun.  461.  (/))    Butler   v.  Butler,    3  Atk.    60. 

(&)  Crickett  v.  Dolbv,  3  Yes.  jun.  Barley  v.  Darley,  399.     Yid.  Andrews 

12.  v.    Partington,  "3    Bro.   Ch.    Rep.   69. 

(/)  Raven  v.  White,  1  Swans.  Rep.  Walker  v.  Shore,  15  Yes.  jun.  122. 

553.     S.  C.   1  Wils.  204.  (y)   Butler    v.    Butler,  '  3    Atk.    60. 

(m)  Nichols  v.  Osborn,    2  P.  Wms.  Harvey  v.  Harvey,  2  P.  Wins.  21.     But 

420.      Vid.  Tyrrell  v.  Tyrrell,  4  Ves.  see  Buck  worth  v.  Buck  worth,   1  Cox's 

jun.  4.                                                          •  Rep.  80. 

O)  Tissen  v.  Tissen,  1  P.  Wms.  500. 

(1)  Cruger  v.  Heyward,  2  Desaus.  Rep.  84. 

(2)  See  Heyward '  \\  Cuthbert,  4  Desaus.  Rerj  445      Wyersx  Myers,  2  M'Cord"' 
Cha.  Rep.  255. 


CHAP.   IV.]        THE  RATE  OF  SUCH  INTEREST.  327 

instances,  where  the  will  has  contained  an  express  direction  for 
maintenance  of  the  legatees  out  of  the  interest  of  the  legacies,  and 
there  have  been  other  children,  not  the  objects  of  the  testator's 
bounty,  such  maintenance  has  been  ordered,  on  the  ground  of  the 
father's  not  being  of  ability  to  educate  the  favoured  children  in  a 
manner  suitable  to  their  fortunes  (r).  But  thc«court  wilUnot  make 
an  allowance  to  a  father  for  the  maintenance  of  a  child  for  the  time 
past,  although  it  should  appear  that  he  had  not  been  of  ability  to 
maintain  him,  and  the  will  has  expressly  given  the  produce  to  trus- 
tees for  the  child's  maintenance  (s).  And  the  court  has  made  a  liber- 
al allowance  of  maintenance  for  an  infant,  in  regard  to  an  illegiti- 
mate brother  unprovided  for  (/). 

On  occasions  extremely  urgent,  the  court  will  even  break  in  up- 
on the  principal  ;  but  this  authority  is  exercised  very  sparingly,  and 
with  great  caution  (it).  If  the  legacy  be  of  small  amount,  and  the 
interest  altogether  inadequate  to  the  necessities  of  the  infant,  the 
[328]  court  will  order  a  part  of  the  principal  to  be  immediately 
paid,  and  that  as  well  for  his  education,  as  for  his  maintenance  {v). 
(1)  But  if  the  legacy  be  devised  over  in  case  of  the  infant's  dying 
before  he  comes  of  age,  the  principal,  it  seems,  shall  on  no  account 
be  subject  to  such  diminution  (w).  (2). 

With  respect  to  the  quantum  of  the  interest  thus  payable  on  a 
legacy,  a  distinction  formerly  prevailed  between  legacies  charged 
on  land,  and  such  as  were  charged  on  the  personal  estate.  It  has 
been  held,  that  as  land  never  produces  profit  equal  to  the  interest 
of  money,  the  Court  of  Chancery  will  follow  the  course  of  things, 
and  give  interest,  where  it  arises  from  land,  one  per  cent,  lower 
than  where  it  arises  from  personal  property  (x)  ;  but  this  distinction 
is  now  exploded  :  Whether  legacies  are  charged  on  real  or  on  per- 
sonal estate,  it  is  become  the  established  practice  to  allow  only  four 
per  cent,  where  no  other  rate  of  interest  is  specified  by  the  will. 
And  although  pecuniary  legacies  not  having  the  addition  of  the 
word  "sterling,"  are  to  be  paid,  as  I  have  already  stated,  according 
to  the  currency  of  the  country  where  the  will  was  made,  yet  the 
interest  is  to  be  computed,  in  conformity  to  the  course  of  the  court, 

(r)  Hoste  v.  Pratt,  3  Ves.  jun.  733.  21.     Vicl.  supr.  318,  319. 

Vid.  also  Mundy  v.  Earl  Howe,  4  Bro.  (v)  Barlow  v.   Grant,    1  Vern.  255. 

Ch.  Rep.  223.     Heysham  v.  Heysham,  Harvey  v.  Harvey,  2  P.  Wms.  21.     Ex 

1  Cox's  Rep.  179.  parte  Green,  1  Jac.  &  Walk.  Rep.  253. 

(s)  Andrews  v.  Partington,  2  Cox's  (w)  4  Bac.  Abr.  442.  Leech  v.  Leech, 

Rep.  223.  1  Ch.  Ca.  249.  Brewin  v.  Brewin,  Prec. 

(/)  Bradshaw  v.  Bradshaw,  1  Jac.  &  Ch.  195. 

Walk.  647.  (x)  Hearle  v.  Greenbank,  1  Vez.  308, 

(u)  Harvey  v.  Harvey,   2  P.  Wms.  309. 


(1)  Matter  of  Boshcick,  4  Johns.  Ch.  Rep.  102. 

(2)  Nor  will  the  interest  be  applied  for  maintenance  and  education,  in  snch  a 
case.     Miles  v.  Wider,  5  Binn.  477. 


328  THE  KATE  OF  SUCH  INTEREST.     [BOOK  III. 

at  lour  per  cent,  and  not  pursuant  to  the  rate  of  interest  in  such 
country  (y). 

[329]  On  the  payment  of  a  legacy  an  executor  is  hound  to  take 
a  receipt  for  the  same  properly  stamped  according  to  the  value  of 
the  legacy,  and  the  relationship  of  the  legatee  (z). 

A  testaior  directing  legacies  to  be  paid  at  the  expiration  of  six 
months  after  his  death,  without  deduction,  the  legatees  are  entitled 
to  the  full  amount,  and  the  legacy  duty  must  be  paid  by  the  execu- 
tors («). 

If  a  testator  die  in  India,  and  his  personal  estate  be  wholly  in 
India,  and  his  executor  be  resident  there,  and  the  will  be  proved 
there,  and  the  executor  remit  to  a  legatee  in  England,  or  to  some 
other  person  in  England  for  the  specific  use  of  the  legatee,  the 
amount  of  his  legacy,  the  legacy  duty  is  not  payable  upon  such  re- 
mittance, inasmuch  as  the  whole  estate  is  administered  in  India,  and 
the  remittance  is  in  respect  of  a  demand  which  is  to  be  considered 
as  established  there.  But  if  a  part  of  the  assets  of  the  testator  is  found 
in  England,  in  the  hands  of  the  agent  of  such  executor,  without 
any  specific  appropriation,  and  a  legatee  in  England  institute  a  suit 
here  for  the  payment  of  his  legacy  out  of  such  unappropriated  as- 
sets, then  such'  assets  are  to  be  considered  as  administered  in  Eng- 
land, and  the  legacy  duty  is  payable  in  respect  of  them  (b). 

An  executor  paid  to  a  legatee  for  four  years  an  annuity  charged 
on  a  real  estate,  without  deducting  the  legacy  duty,  which  was  not 
in  fact  paid  by  him  according  to  the  provisions  of  45  Geo.  3.  c.  2S. 
until  after  the  legatee  had  assigned  all  his  interest  in  such  annuity; 
it  was  held,  that  the  legatee  was  liable  to  repay  him  the  duty,  it  not 
being  a  voluntary  payment ;  and  the  executor  was  only  made  liable 
by  the  act  for  the  benefit  of  government,  and  not  on  his  own  ac- 
count ;  he  was  therefore  no  more  than  surety  for  the  legatee,  and 
the  case  fell  within  the  principles  applicable  to  sureties  (c). 


Sect.    IV. 
Of  the  ademjition  of  a  legacy. 

I  proceed  now  to  enquire  into  the  nature  of  an  ademption  of  a 
legacy. 

An  ademption  of  a  legacy  is  the  taking  away,  or  revocation  of 
it  by  the  testator.      It  may  be  either  express  or  implied.     The  tes- 

(?/)  Pierson    v.  Garnet,    2  Bro.  Ch.  (b)  Logan  v.  Fairlie,  2  Sim.  &  9tu. 

Rep.    47.     Malcolm  v.  Martin,  3  Bro.  284.  and  see  Attorney-General  v.  Cocke- 

Ch.  Rep.  53.     4  Bac.  Abr.  440.  in  note,  rell,  1  Price,  165.  and  Attorney-Gene- 

(z)  Vid.  Append.  ral  and  Beatson,  7  Price,  560. 

(«)  Barksdale    v.   Gilliat,    1   Swans.  (c)    Hales    v.  Freeman,    1   Bing\  &. 

S62.  and  see  Waring1  v.  Ward,  5  Yes.  Brod.  Rep.  391. 
670. 


CHAP.  IV.j        THE  ADEMPTION  OF  A  LEGACY,  329 

tator  may  not  only  in  terms  revoke  a  legacy  he  had  before  given, 
but  such  intention  may  be  also  indicated  by  particular  acts  (a)  :  As 
where  a  father  makes  a  provision  for  a  child  by  his  will,  and  after- 
wards gives  to  such  child,  if  a  daughter,  a  portion  in  marriage  :  or 
if  a  son,  a  sum  of  money,  to  establish  him  in  life,  provided  such 
portion,  or  sum  of  money  be  equal  to  or  greater  than  the  legacy, 
this  is  an  implied  ademption  of  it,  for  the  law  will  not  intend  that 
the  father  designed  two  portions  for  the  same  child  (6).  But  this 
[330]  implication  will  not  arise  if  the  provision  in  the  will  is  creat- 
ed by  bequest  of  the  residue  (c)  ;  nor  if  the  provision  in  the  father's 
lifetime  be  subject  to  a  contingency  (d)  ;  nor  unless  it  be  ejusdem 
generis  with  the  legacy  (e)  ;  nor  if  it  be  expressly  in  satisfaction  of 
a  claim  aliunde  ;  nor  if  the  portion  be  given  absolutely,  and  the 
legacy  under  limitations  (/)  ;  nor  if  the  testator  were  a  stranger  (g)  ; 
nor  if  the  testator  be  the  uncle  of  the  legatee  (A)  ;  nor  if  the  legatee 
be  an  illegitimate  child,  unless  the  testator  placed  himself  clearly 
in  loco  parentis  (i)  ;  and  the  doctrine  of  ademption  of  legacies  is 
fully  considered  as  confined  to  the  cases  of  parents,  and  persons 
placing  themselves  in  loco  parentis  ;  and  such  implication  is  always 
liable  to  be  repelled  by  evidence  {k).  But  if  the  testator,  by  a  co- 
dicil subsequent  to  the  portioning  or  advancement  of  the  child,  rati- 
fy and  confirm  his  will,  this,  although  a  new  publication,  shall  not 
avail  to  overturn  the  presumption,  that  he  meant  to  adeem  the  lega- 
cy ;  for  such  words  are  merely  formal  (/).  A  gift  by  a  parent  in 
his  lifetime  to  legatees,  after  a  will  giving  them  legacies,  has  been 
held  to  be  part  satisfaction  of  the  legacies,  upon  evidence  of  the  in- 
tention of  the  testator  to  that  effect. 

In  respect  to  the  ademption  of  a  legacy,  all  the  cases  on  the  sub- 
ject concur  in  the  principle,  that  the  intention  of  the  testator  must 
govern  ;  but,  in  the  application  of  that  principle,  or  what  shall 
amount  to  evidence  of  such  an  intention,  they  are,  in  many  in- 
stances, incapable  of  being  reconciled. 

Thus,  in  some  cases  it  has  been  held,  that  where  a  sum  of  money 
is  bequeathed  out  of  a  particular  fund,  such  legacy  is  in  its  nature 

(a)  2  Fonbl.  353.  (/)  Baugh  v.  Reed,  3  Bro.  Ch.  Rep. 

lb)  2  Fonbl.  354.  note  A.    Hartop  v.  192.     Bell  v.  Coleman,  5  Madd.  Rep. 

Whitmore,  1  P.  Wms.  680.    2  Ch.  Rep.  22. 

85.     Jenkins  v.  Powell,  2  Vern.  115.  (g)  Shudall  v.  Jekyll,   2  Atk.  516, 

Duffield  v.  Smith,  2  Vern.  257.     Ward  Powell  v.  Cleaver,  2  Bro.  Ch.  Rep.  499, 

v.  Lant,   Prec.  Ch.  183.     Farnham  v.  (h)  Brown  v.  Peck,  1  Eden'9  Rep. 

Phillips,  2  Atk.  216.     Watson  v.  Earl  140.                ■      ' 

Lincoln,  Ambl.  325.     Ellison  v.  Cook-  0")  Wetherby  v.  Dixon,  Coop.  Rep. 

son,  2  Bro.  Ch.  Rep.  307.    S.  C.  3  Bro.'  279.    S.  C.  19  Ves.  407.  and  see  ex  par 

Ch.  Rep.   61.      Cookson  v.  Ellison,  2  te  Dubost,  18  Ves.  140. 

Cox's  Rep.  2'20.     Hartop  v.  Hartop,  17  (k)  Shudal  v.   Jekyll,    2  Atk.  516. 

Ves.  184.  Debeze  v.  Mann,  2  Bro.  Ch.  Rep.  165. 

(c)  Farnham  v.  Phillips,  2  Atk.  216.  519.     S.  C.  1  Cox's  Rep.  346. 

(d)  Spinksv.  Robins,  2  Atk.  491.  (/)    Irtid    v.  Hurst,    2    Freem.- 224. 

(e)  Grace  v.  Earl  of  Salisbury,  1  Bro.  Thelluson  v.  Woodford,  4  Madd,  Rep. 
Ch.  Rep,  425.  421. 

23 


331  THE  ADEMPTION  OF  A   LEGACY.  [BOOK   III. 

[331J  general,  a  legatum  in  numeratis,  and  if  the  testator  in  his 
lifetime  receive  it,  it  must  be  made  good  to  the  legatee  out  of  the 
general  assets  ;  for  from  that  act  of  the  testator  no  presumption  can 
be  raised  of  his  intention  to  revoke  his  bounty  (m).  (1)  In  other 
cases  it  has  been  decided,  that  such  a  legacy  under  the  same  circum- 
stances is  adeemed  (n).  Some  authorities  distinguish  between  the 
bequest  of  a  sum  of  money  to  be  satisfied  out  of  a  particular  fund, 
and,  consequently,  a  general  legacy,  and  a  bequest  of  a  specific 
debt ;  that  the  former  is  not  adeemed,  while  the  latter  is  adeemed 
by  payment  to  the  testator  (o).  But  these  last  mentioned  cases  dif- 
fer in  their  construction  of  what  shall  be  the  bequest  of  a  general 
legacy,  as  opposed  to  that  of  a  specific  debt.  Some,  as  we  have  al- 
ready seen  (p),  adopt  a  distinction  between  the  bequest  of  a  cer- 
tain sum  of  money  due  from  a  particular  person,  as  "five  hundred 
pounds  due  on  a  bond  from  A.  ;"  and  a  bequest  of  such  debt  gener- 
ally, as,  "of  the  bond  from  A.  ;"  that,  in  the  former  instance,  the 
legacy  is  pecuniary,  in  the  latter  is  specific  (q).  But,  according  to 
other  cases,  this  distinction  is  too  slender  to  be  relied  on  (r).  A 
difference  has  also,  in  some  instances,  been  taken  between  a  com- 
pulsory, and  a  voluntary  payment  to  the  testator  of  such  debt ;  in 
[332']  other  words,  where  the  testator  himself  calls  in  a  debt  which 
he  has  bequeathed,  and  where  the  debtor  unprovoked,  and  without 
application,  thinks  fit  to  pay  it ;  that,  in  the  former  instance,  it  is 
the  act  of  the  testator,  and,  consequently,  an  ademption  ;  in  the  lat- 
ter he  is  merely  passive,  and  therefore  cannot  be  presumed  to  have 
changed  his  mind  (s).  But  the  doctrine  of  some  cases  is,  that  this 
distinction  has  no  weight  (7)  ;  and  of  others,  that  it  has  no  exist- 
ence (w),  and  that  the  case  is  not  varied  by  the  mode  of  payment. 
In  another  class  of  cases  this  distinction  between  a  compulsory  and 
a  voluntary  payment  has  been  recognised  as  very  important,  but 
not  as  an  absolute  rule  of  decision  ;  on  the  principle,  that  the  testa- 
tor's calling  for  payment  is  not  of  itself  sufficient  evidence  of  an  in- 
tention to  adeem,  but  an  equivocal  act  requiring  explanation  (v). 

(m)  4  Bac.  Abr.  355.     Ashburner  v.  Ch.  Rep.  111.     1  Eq.  Ca.  Abr.  302. 

Macguire,  2  Bro.  Ch.  Rep.  108.   Finch.  (s)  Crockat  v.  Crockat,  2  P.  Wms. 

152.     Pawlet's  case,  Raym.  335.     Sa-  165.  330.  note  1.  ibid.     Bronsdon    v. 

vile  v.  Blacket,  1  P.  Wms.  777.  Winter,  Ambl.  57. 

(n)  Badrick  v.  Stephens,  3  Bro.  Ch.  (t)  Earl  of  Thomond  v.  Earl  of  Suf- 

Rep.  431.     See  also  2  Fonbl.  367.  note  folk,  1  P.  Wms.  461.    Ashton  v.  Ash- 

(f).  ton,  3  P.  Wms.  386.    S.  C.  2  P.  Wms. 

(o)  Hambling  v.  Lister,  Ambl.  401.  469.     Ford  v.  Fluming,  2  Str.  823. 

(p)  Vid.  supr.  303.  (m)    Attorney-General    v.     Parkin, 

(q)  Rider  v.  Wager,  2  P.  Wms.  330.  Ambl.  566.     Ashburner  v.    Macguire, 

and  note  1.  ibid.     Attorney-General  v.  2  Bro.  Ch.  Rep.  109.     4  Bac.  Abr.  355. 

Parkin,  Ambl.  566.     Carteret  v.  Lord  note  (B).     Stanley  v.  Potter,  2  Cox's 

Carteret,   cited  2  Bro.  Ch.  Rep.  114.  Rep.  180. 

and  see  Le  Grice  v.  Finch,  3  Mcri.  Kep.  (v)  Drinkwater  v.  Falconer,  2  Yes. 

50.                                                .  623.     Hambling  v.  Lister,  Ambl.  401. 

(»•)  Ashburner  v.  Macguire,  2  Bro.  Coleman  v.  Coleman,  2  Ves.  jun.  639. 

(1)   Walton  v.  Walton,  7  Johns.  Cha.  Rep.  262. 


CHAP.  IV.]         THE  ADEMPTION  OF  A  LEGACY.  332 

It  is,  however,  clear  that  if  the  legacy  be  of  a  specific  chattel,  and 
the  testator  alter  the  form,  so  as   to  alter  the  specification  of  the 
subject ;  as  if,  after  having  given  a  gold  chain  by  his  will,  he  con- 
vert it  into  a  cup  ;  or,  after  he  has  bequeathed  wool,  he  make  it 
into  cloth,  or  a   piece  of  cloth  into  a  garment ;  the  most  obvious 
conclusion  that  can  be  formed  from  such   an  act  is,  that  he   has 
changed  the  intention  he   had  expressed  in   his   will  ;  therefore, 
in  such  instances,  the  legacy  shall  be  adeemed  {w).  (1)    So,  if  he 
bequeath  his  stock  in  a  particular  fund,  and  sell  it  out  subsequently 
to  the  making  of  the  will,  this,  on  the    same  principle,   amounts 
to  an  ademption  (or).     And  where  a  testator  bequeathed  two  poli- 
cies on  a  life  upon  certain  trusts,  and  received  the  amount  of  the 
policies  in  his  lifetime,  it  was  held  that  the  legacies  were  adeem- 
ed (x). — But  if  A.  bequeath  so  much  stock  to  B.,  and,  after  mak- 
ing his  will,  sell  it  out  and  then  buy  in  again  the  same  quantity  of 
stock,  this  is  no  ademption  :  for  if  the  selling  of  the  stock  is  evi- 
dence of  his  having  altered  his  intention,  his  buying  it  in  again  is  evi- 
dence, equally  strong,  that' he  meant  the  legatee  should  have  it  (y). 
(2)  If  the  testator,  after  such  bequest  of  stock,  sell  out  part  and  die, 
such  sale  shall  be  an  ademption  pro  tanto  (z).     Thus,  where  A.  be- 
queathed a  moiety  of  two-thirds  of  the  residue  of  the  South  Sea 
Stock,  India,  Bank,  and  Orphan  Stock,  Leases,  East  India  and 
South  Sea  Bonds,  and  other  his  personal  estate  to  B.  ;  B.  before  he 
received  this  legacy  made  his  will,  and  devised  this  moiety  to  trus- 
tees to  sell  and  pay  out  of  the  same  the  sum  of  two  hundred  pounds 
to  C.  and  the  residue  of  the  money  to  D.  :  afterwards  B.  and  the 
legatee  of  the  other  moiety  coming  to  an  account  with  the  executor 
of  A.,  their  respective  shares  were  set  out  and  received,  and  the 
stock  and  bonds  were  allotted  to  B.,  who  sold  part  of  them  in  his 
lifetime,  but  kept  no  account  of.  the  produce  :  this  was  decreed  to 
be  an  ademption  of  the  legacy  to  D.  pro  tanto  :  but  it  was  held  that 
B.'s  receipt  of  his  share  was  clearly  no  ademption  ;  inasmuch  as  the 
[334]  object  both  of  B.  and  the  other  was  merely  to  ascertain  their 
moieties,  and  to  prevent  survivorship  (a). 

So  it  has  been  decided,  that  a  bequest  of  a  debt  shall  hot  be 
adeemed  by  the  testator's  having  received  dividends  upon  it  under 
the  bankruptcy  of  the  debtor  (b).  But  that  such  legatee  is  entitled 
to  the  dividends  not  received  by  the  testator,  and  whatsoever  may  in 
future  be  payable  out  of  the  bankrupt's  estate,  in  respect  of  that  debt 

(to)  3  Bro.  Ch.  Rep.  110.  (z)  Ca.  Temp.  Talb.  226. 

(x)  3  Bro.  Ch.  Rep.  108.     Barker  v.  («)  Birch  v.  Baker,  Mos.  ;">7o. 

Rayner,  5  Madd.  Rep.  208.  (b)  Ashburner  v.  Macguire,  2  Bro. 

(y)  Partridge  v.  Partridge,  Ca.  Temp.  Ch.  Rep.  108. 
Talb.  226. 

(1)  Walton  v.  Walton,  7  Johns.  Cha.  Rep.  262. 

(2)  So  where  a  bequest  was  made  of  "  all  the  money  due  on  a  bond  against 
P.  P.  and  J.  P.,"  and  after  such  bequest  the  testator,  at  the  request  of  one  ol  the 
obligees,  accepted  another  bond  in  lieu  of  the  first,  it  was  held  not  to  be  an  ademp- 
tion of  the  legacy,  which  was  ?peeinc.     Stout  \   Hurt,  2  Halst  Rep.  414. 


334  OF  CUMULATIVE   LEGACIES.  [BOOK  III. 

Sect.   V. 
Of  cumulative  legacies. 

Legacies  may  be  also  cumulative  :  they  are  contradistinguished 
from  such  as  are  merely  repeated.  As  where  a  testator  has  twice 
bequeathed  a  legacy  to  the  same  person,  it  becomes  a  question  whe- 
ther the  legatee  be  entitled  to  both,  or  to  one  only.  And  on  this 
point  likewise  the  intention  of  the  testator  is  the  rule  of  construc- 
tion (a).  (1) 

On  this  head  there  are  three  classes  of  cases  ;  first,  those  cases  in 
which  there  is  no  evidence  of  such  intention,  either  internal  or  ex- 
trinsic, one  way  or  the  other  ;  those  cases  whe're  there  is  internal 
evidence  ;  and  also  those  in  which  there  is  extrinsic  evidence. 

[335]  In  regard  to  the  first,  where  there  is  neither  internal  or  ex- 
trinsic evidence,  it  is  necessary  to  recur  to  the  rule  of  law  (6). 
There  are  four  instances  of  this  class  : 

Where  the  same  specific  thing  is  bequeathed  to  A.  twice  in  the 
same  will,  or  in  the  will  and  again  in  a  codicil  :  in  that  case  he  can 
claim  the  benefit  only  of  one  legacy,  because  it  could  be  given  no 
more  than  once  (c). 

Where  the  like  quantity  is  bequeathed  to  him  twice  by  one  and 
the  same  instrument :  there  also  he  shall  be  entitled  to  one  legacy 
only  (d).  So  where  an  unconditional  legacy  was  given  by  a  third 
testamentary  paper,  it  was  held  to  be  a  substitution  for  a  conditional 
legacy  to  the  same  amount,  given  by  the  first  testamentary  paper  (e). 

Where  the  bequest  to  him  is  of  unequal  quantities  in  the  same 
instrument ;  the  one  is  not  merged  in  the  other,  but  he  has  a-right 
to  them  both(/). 

And,  lastly,  where  the  bequest  to  him  is  of  equal,  or  unequal, 
quantities  by  different  instruments  :  in  that  case  also  there  shall  be 
an  accumulation  (°). 

There  are  likewise  cases  in  which  there  is  internal  evidence 
of  the  testator's  intention  ;  as  where  a  latter  codicil  appears  to  be 
[336]  merely  a  copy  of  the  former  with  the  addition  of  a  single  Ie~ 

(o)  4  Bac.  Abr.  361.    Ridges  v.  Mor-  Madd.  Rep.  263.  and  see   Gillespie  v. 

rison,  1  Bro.  Ch.  Rep.  3£9.     Coote  v.  Alexander,  2  Sim.  &  Stu.  145. 

Boyd,  2  Bro.  Ch.  Rep.  527.  .      (/)   1   Bro.  Ch.  Rep.  392.  in  note 

(b)  Hooley  v.  Hatton,  1  Bro.Ch.  Rep.  Vid.  Coote  v.  Boyd,  2  Bro.  Ch.  Rep. 
391,  in  note.  521. 

(c)  1  Bro.  Ch.  Rep.  392,  in  note,  and  (g)  1  Bro.  Ch.  Rep.  391.  and 
ibid.  393.  in  note.     Masters  v.  Masters,  1  P.  Wins 

(d)  1  Bro.  Ch.  Rep.  392,  in  note.  423.  1  Ch.  Ca.  361.  Foy  v.  Fov.  1 
Swinb.  p.  7.  s.  21.  1  Bro.  Ch.  Rep.  30,  Cox's  Rep.  163.  Baillie  v.  fiutterfield, 
in  note.  4  Bac.  Abr.  361.  Masters  v.  ibid.  392.  Benvon  v.  Benyon,  17  Ves 
Masters,  1  P.  Wms.  424.  34. 

(e)  Attorney-General    v.    Harley,    4 

(1)  See  the  doctrine  fully  stated,  De  Witt  v.  F/tfes,  10  Johns,  Rep.  \S6 


CHAP.  IV.]  OF  CUMULATIVE  LEGACIES.  336 

gacy  ;  or  where  both  legacies  are  given  for  the  same  cause  :  they 
shall  not  be  cumulative,  whether  given  by  the  same  or  different  in- 
struments, as  they  shall  be  where  one  is  given  general^,  and  the 
other  for  an  express  purpose  ;  or  where  one  reason  is  assigned  for 
the  former,  and  another  for  the  latter  ;  or  where  the  legacies  are 
not  ejusdem  generis,  as  where  an  annuity  and  a  sum  of  money  is 
given  (A),  or  two  annuities  of  the  same  amount,  by  different  instru- 
ments,-the  one  payable  quarterly,  the  other  half-yearly  (i)  ;  or  two 
annuities  of  different  amounts,  the  one  given  by  the  will,  payable 
out  of  real  estate,  the  other  by  the  codicil,  payable  out  of  personal 
estate  (k).  In  like  manner  it  may  be  collected  from  the  context, 
whether  the  testator  meant  a  duplication,  or  a  mere  repetition  of 
the  first  bequest.  And  his  intention  has  been  inferred  from  very 
slight  circumstances  (/). 

Extrinsic  evidence  is  also  admissible  on  this  subject.  Whether 
the  testator  by  giving  two  legacies  did,  or  did  not,  intend  the  le- 
gatee to  take  both,  is  a  question  of  presumption,  which  will  let  in 
every  species  of  proof  (m).  Hence,  if  the  testator,  after  the  mak- 
ing of  the  will,  and  before  the  date  of  the  codicil,  had  an  increase 
of  fortune,  that  circumstance  has  been  held  to  prove  that  he  intend- 
ed an  additional  bounty  (n). 


Sect.   VI. 
Of  a  legacy  being  in  satisfaction  of  a  debt. 

Undek  certain  circumstances,  a  legacy  is  regarded  in  the  light 
[337]  of  a  satisfaction  of  a  debt.  On  this  point  also,  the  intention 
of  the  testator  is  the  criterion  (a). 

It  is  a  general  rule,  that  a  legacy  given  by  a  debtor  to  his  credi- 
tor, which  is  equal  to  or  greater  than  the  debt,  shall  be  considered 
as  a  satisfaction  of  it  (6).  (1) 

(h)  Masters  v.   Masters,   1  P.  Wins.  527,  528.     4  Bac.  Abr.  361,  in  note. 

423.  (rc)  Masters  v.  Masters,    1  P.  Wms. 

(0  Currie  v.  Pye,  17  Ves.  jun.  462.  424. 

(k)  Wright  v.  Lord  Cadogan,  2  Ed-  (a)  4  Bac.  Abr.    362.     Cuthbert  v. 

en's  Rep.  239.  Peacock,  1  Salk.  155.  pi.  5.    Cranmer', 

(/)  4  Bac.  Abr.  361.     Duke  of  St.  case,  2  Salk.  508.     2  Fonbl.  332. 

Alban's  v.  Beauclerk,  2  Atk.  640.    Rid-  (J)  1  P.  Wms.  409,  note  1.     Talbot 

ges  v.  Morrison,   1  Bro.  Ch.  Rep.  389.  v.  Duke  of  Shrewsbury,  Prec.  Ch.  394, 

Coote  v.  Boyd,  2  Bro.  Ch.  Rep.  521.  Jeffe  v.  WoofT,  2  P.  Wms.  132.     Fow- 

1  P.  Wms.  424,  in  note  2.     Benyon  v.  ler  v.  Fowler,  3  P.  Wms.  353.     Reech 
Benyon,  17  Ves.  jun.  34.  v.  Kennegal,  1  Ves.  126.     Vid.  Cromp 

(m)  Coote  v.  Boyd,  2  Bro.  Ch.  Rep.     ton  v.  Sale,  2  P.  Wms.  555. 

(1)  Williams  v.  Crary,  8  Cow.  Rep.  246.  But  a  devise  of  lands  to  a  creditor, 
though  it  be  greater  in  value  than  the  amount  of  the  debt,  does  not  extinguish  a 
debt  or  claim  which  he  has  against  the  testator.     Partridge's  Adm.  v.  Partridge, 

2  Harr.  &  Johns.  63. 


.J.17  <>i    A  LEGACY  TO  A  CflMfiDlTOR.         [BOOK  11/. 

But  thii  ii  merely  i  rule  of  construction,  and  the  courts  in  s  va 
riety .'of  instances  have  denied  the  application  of  it,  where  they  hare 
been  able  to  collect  from  the  will  circumstance!  to  repel  the  pre 
■umption  (c)  i     As  where  it  contains  an  express  direction  for  the 
payment  «»i  debt* (of),  (1)  or  if  the  l«  ^,:ny  l>e  less  then  the  debt,  it 
has  been  held  not  to  go  in  discharge,  nor  even  in  diminution  of 

Nor  shall  the  legacy  be  a  satisfaction  ii  it  be  conditional,  or  giv 
en  on  ;>  contingency,  for  it  shall  not  be  supposed,  that  the  testatoi 
intended  an  uncertain  recompence   in  satisfaction  of  a  certain  de 
mand  (./')■     Nor  is  a  legacy  considered  as  s  satisfaction,  where  it 
is  not  equally  beneficial  with  the  debt  in  one  respect,  though  itmay 
be  more  so  in  .umi  lur ;  as,  where  the.  legacy  is  to  a  greater  amount, 
1 338 1  l>nt.  tin;  payment  of  it  is  postponed  tor  howover  short  a  pei  i 
od  (g)  -.  nor  shall  a  legacy  be  held  to  l^:  in  satisfaction  of  a  cove 
nant,  unless  it  be  equally  beneficial  in  amount,  certainty,  and  time 
of  enjoyment,  with  the  thing  contracted  for  (/*). 

Nor  if  the  debt  were  on  an  open  or  running  account,  so  that  the 
i  ( slat  or  could  not  tell  whether  the  balance  was  in  favour  of  the  lega- 
tee or  not  (t).  (.'{)  Nor  if  the  debt  were  contracted  after  the  making 
of  the  will  in  which  the  legacy  is  given,  shall  he  be  supposed  to 
have  had  it  in  cohtemplation  to  satisfy  a  debt  which  was  not  then  in 
existence  (/<•). 

Parol  declarations  l>y  the  testator  are  admissible  in  evidence,  to 
repel  the  presumption  of  the  satisfaction  ol  a  debt,  by  the  bequest 


(c)  l  r.  Wins.  400,  noti •  i.  136     n,    .  .  i    Warner,  3  Vein.  47d. 

(V)  Chancly'i  cue,  I  P.  Wra*.  410.  Nicholls  v.  Judson,  2  Atk.  300.    Clarl 

Richardson  v.  Grease,  3  A  i  k .  86.  68.  v.  Sewell,  3  A  i  k .  96.     Hayes  v.  Mico, 

•,.  il  \  id.  •  ..i\  nor  Vi  vVorni,  ;it  the  Rolls,  I  Bro.  Ch.  Rep.  129.    Jeacoi  l<  v.  i '  kill 

cited  i  P. Wins.  409.  note  1.  and4Bac.  ener,  ib.  295.    2  Fonbl.  331.  note  \i 

M,r.  4  18  Mathews  v.  Mathews,    !  \  i  •.  63  I      I 

(,)   Cranmer's  case,   2   Balk.   508.  P. Wmi. 409. note  1. 
n.iwts  v.  Warner,  2  Vern.  478.    Bait-       (A)  Blandy  v.  Wedmore,  l  P.  Um 

wood  v.  Vinke,  2  P.Wms.  616.    Mi  124   409,  noti   i      Eastwood  i    Vink 

mi<  I  v.  Bazarine,  Mos.  29  I  'J  P.  Wms.  61  I.      !  Fonbl  3  ■  '.  noti  O 

(/')  2  Fonbl.  331.    Talbol  v.  Duke        [i]    Rawlins  v.  Powel,    I  P.  IVms 

oj  Shrewsbury,  Pn  i ,  Ch.  394     Cran-  299 

•.  .  ,,  ,   sj  Ball    508.    Nicholli  v.        (/,■)  2  Fonbl  331,  132.   2  SaU 

JucUon,  2  Atk.  300.    Bpinks  v,  Robins,  Chancey'n  case,  I  P.  Wmi.  409.     Tho 

ib  491.    Crompton  v.  Sale,  2  P.  Wins,  maav.  Be t,    !P.Wm«    143,     Fom 

..>     Barret  v.  Beckford,  I  Vet.  519.  Icr  v.  Fowler,  3  P.  Wmi.  353. 

(fr)  Atkinson  v.  Wei»i .,    Prec.   Ch. 


(1)  sin  ii  express  direction  Uot  no  moment  in  Pennsylvania.    ISerg.fi  Rawli . 

(2)  Strong  v.  Williamat  12  Man  Rep.  391.  Byrne  v.  Byrne,  8  Berg.  &  Rawli , 
M.     Owingr  I'.i    v.  Owinga,  I  Harr,  oc  Gill's  Bep.  484. 

(.'?)  Willtiinin  v.  Crary,  5  Cow  Rep.  368.  Bu1  it  was  lubsequentl)  ruled  i» 
On.  i  :ihc,  thai  win  i '  thi  Ii  r-i'  >■  appi  an,  either  from  the  face  of  the  will,  or  by 
evidence  aliunde,  to  be  intended  by  the  testatoi  i       latisfaction,  it  will  so  opi 

te,  though  the  sum  bequeathed  stand  in  diquidat  d  ,(      Willian 

i         Rep  246, 


CHAP.   IV. j         OF  A  LEGACY  TO  A   CREDITOR.  338 

of  a  legacy  of  greater  amount,  even  where  such  declarations  were 
not  contemporaneous  with,  hut  subsequent  to  the  making  of  the 
wilL;  (l)and  although  the  expressions  in  the  will  may  alfurdan  infer- 
ence in  favor  of  the  presumption  (7). 

But  in  all  cases  the  legacy  shall  he  construed  as  a  satisfaction,  in 
case  there  he  a  deficiency  of  assets. 

Where  a  legacy  is  decreed  to  he  in  satisfaction  of  a  debt,  the  court 
always  gives  interest  from  the  testator's  death  (m). 

On  the  other  hand,  if  a  legacy  he  left  to  the  testator's  debtor,  the 
debt  shall  be  deducted  from  the  legacy,  for  the  legatee's  demand  is 
in  respect  of  the  testator's  assets,  without  which  the  executor  is  not 
liable,  and  therefore  the  legatee  in  such  case  is  considered  by  a 
court  of  equity  to  have  so  much  of  the  assets  already  in  his  hands 
.-is  the  debt  amounts  to,  and  consequently  to  be  satisfied  pro  tmito; 
for  there  can  be  no  pretence  to  say,  that  because  the  testator  gives  a 
legacy  to  his  debtor,  that  this  is  an  argument  to  evidence  that  the 
testator  meant  to  remit  the  debt.  So  under  certain  circumstances, 
money  or  goods  lent  or  delivered  by  the  executor  to  such  legatee, 
was  held  by  the  court  to  be  in  part  payment  of  the  legacy  (n). 

If  the  testator  bequeath  to  his  debtor  the  debt,  this  being  no 
more  than  a  release  by  will,  operates,  as  we  have  seen  (o),  only  as 
a  legacy  ;  and  is  assets,  subject  to  the  payment  of  the  testator's 
debts  (p). 

Where  a  legacy  was  left  to  the  wife  of  A.,  who  was  largely  in- 
debted to  the  testatrix,  and  A.  became  a  bankrupt,  and  his  wife  af- 
terwards died  without  having  asserted  any  claim  in  respect  of  the 
legacy  and  the  assignees  claimed  it,  it  was  held,  that  the  executors 
of  the  testatrix  were  entitled  to  retain  the  legacy  in  part  discharge 
of  the  debt  due  to  the  testatrix  (a). 


[339]  Sect.  VII. 


Of  the  abatement  of  legacies, — of  the  refunding  of  legacies, — of 
the  residuum. 

In  case  the  estate  be  sufficient  to  answer  the  debts  and  specific 
legacies,  but  not  the  general  legacies,  they  are  subject  to  abatement, 
and  that  in  equal  proportions  ;  but  in  such  case  nothing  shall  be 
abated  from  specific  legacies  (a). 

Nor  shall  a  sum  of  money  bequeathed  by  the  testator,  in  satisfac- 

(/)  AVallace  v.  Pomfret,  11  Ves.  jun.  (p)  Rider  v.  Wager,  2  P.  Wins.  332. 

542.     Sed  vid.  3  P.  Wms.  354.              *  (f/)  Ranking  v.  Barnard,  5  Madd.  Rep. 

(to)  Clark  v.  Sewell,  3  Atk.  99.  32. 

In)  Jefli  v.  Wood,  2  P.  Wms.  128.  (a)  2'Fonbl.  374.     2  Bl.  Com.  513. 

(o,   Stif.r.  308.  Clifton  v.  Burt,  1  P.  Wms.  679. 
I 
(1)    Williams  v.  Cranj,  8  Cow.  Rep.  246. 


339  THE  ABATEMENT  OF  LEGACIES.  [BOOK  III. 

tion  or  recompence  of  an  injury  done  by  him,  abate  any  more  than 
a  specific -legacy  (b).  But  a  legacy,  although  devised  to  be  paid  in 
the  first  place,  shall  abate,  if  the  fund  be  insufficient  for  the  lega- 
cies (c),  unless,- perhaps,  it  be  a  provision  for  a  wife  (d).  (I)  So  a 
devise  of  a  personal  annuity  is  not,  as  we  have  seen  (e),  a  specific 
legacy,  but  a  legacy   of  quantity,  and  liable  to   abate  according- 

lyC/)-  (2) 

It  A.  devise  specific  and  pecuniary  legacies,  and  direct  by  the 
will  that  such  pecuniary  legacies  shall  come  out  of  all  his  personal 
estate,  if  there  be  no  other  personal  estate  than  the  specific  legacies, 
[340]  they  must  be  intended  to  be  subject  to  those  which  are  pecu- 
niary, otherwise  the  bequest  to  the  pecuniary  legatees  would  be  al- 
together nugatory  (g).  So  a  legacy  in  favour  of  a  charity,  although 
preferred  by  the  civil  law,  shall  by  our  law  abate  equally  with  other 
general  legacies  (h).  So  a  legacy  to  servants  shall  abate  in  the 
same  manner  (£). 

But  where  a  legacy  of  200/.  was  bequeathed  for  building  a  mon- 
ument for  the  testatrix's  mother,  from  whom  the  testatrix  derived 
the  greatest  part  of  her  estate,  it  was  decreed,  that  being  a  debt  of 
piety,  it  should  not  abate  with  the  other  legacies  {k).  So  where  3/. 
were  given  to  the  poor  of  three  several  parishes,  it  was  considered 
by  the  Court  as  part  of  the  funeral  and  as  doles  of  the  funeral,  and 
therefore  held  that  no  abatement  ought  to  be  made  out  of  them  (/). 
And  where  the  testator,  after  giving  various  legacies,  expressed  at 
the  end  of  his  will  his  apprehension  that  there  would  be  a  consider- 
able surplus  of  his  personal  estate  beyond  what  he  had  before  given 
away  in  legacies,  for  which  reason  he  gave  several  further  legacies; 
and  afterwards,  by  a  codicil,  he  gave  several  other  legacies.  It 
was  decreed,  that  the  subsequent  legacies  given  by  the  will  having 
been  given  in  a  presumption  that  there  would  be  a  surplus,  and 
there  happening  to  be  no  surplus,  the  former  legacies  should  have 
a  preference,  and  the  legacies  given  at  the  end  of  the  will  should  be 

(6)  2  Fonbl.  377.  Tate  v.  Austen,  1  P.  Wms.  265.     Mas- 

(c)  2  Fonbl.  378.  Brown  v.  Allen,  1  ten?  v.  Masters,  422.  Earl  of  Thomond 
Vern.  31.  Beeston  v.  Booth,  4  Madd.  v.  Earl  of  Suffolk,  462.  Attorney-Ge- 
Rep.  161.  neral    v.    Hudson,   675.     Attorney-Ge- 

(d)  Lewin  v.  Lewin,  2  Vez.  417.  neral  v.  Robins,  2  P.  Wms.  25.  296. 

(e)  Vid.  supr.  303.  (?')  Attorney-General  v.  Robins,  2  P. 
(/)  Hume  v.  Edwards,  3  Atk.  693.     Wms.  25. 

Lewin  v.  Lewin,  2  Vez.  417.    Sed  vid.  (k)  Masters  v.  Masters,    1  P.  Wms. 

Peacock  v.  Monk,  1  Vez.  133.  423. 

(g)  Sayer  v.  Sayer,  Prec.  Ch.  393.  (/)  Attorney-General  v.  Robins,  2  P. 

2  Fonbl.  377,  378.  Wms.  25. 

(A)  Jennor  v.  Harper,  Prec.  Ch.  360. 
»  — ^— 

(1)  Stuart  v.  Carson's  Ex.  1  Desaus.  Rep.  500.  See,  however,  Jett,  Ex.  v. 
Bernard,  3  Call's  Rep.  11. 

(2)  A  bequest  of  "twenty  negroes,"  not  designated  by  name,  is  a  specific  le- 
gacy of  the  second  description,  and  liable  to  abate  with  pecuniary  legacies,  War 
ten  v.  JVigfu/l,  3  Desaus.  Rep.  47. 


fcHAP.   IV.]        THE  AHATEMEV1'  OF  LEGACIES.  340 

lost.  That  the  same  apprehension  of  a  surplus  must  be  intended  to 
have  continued  in  the  testator  at  the  time  of  making;  his  codicil, 
and,  therefore,  unless  the  inference  can  be  repelled,  the  legacies  by 
the  codicil  must  be  lost  also  (?n). 

In  case  of  a  deficiency  of  general  assets,  that  is  to  say,  of  assets  to 
pay  debts,  specific  legacies,  although  not  liable  to  abate  with  the 
general  legacies,  must  abate  in  proportion  among  themselves  (n). 

Where  the  vendor  of  an  estate  would  have  absorbed  the  personal 
assets  in  payment  of  his  purchase  money,  which  was  directed  by 
the  will  to  be  paid  by  the  executor,  a  rateable  contribution  was  de- 
creed, as  between  the  devisee  of  the  estate  and  the  legatees  and  an- 
nuitants under  the  will  (o).  f 

We  have  before  seen  (p)  thata  testator  may  carve  specific  legacies 
out  of  a  specific  chattel ;  now,  in  such  case,  if  the  chattel  so  parcel- 
led out  prove  deficient,  such  specific  legacies  must  abate  proportion- 
ally amongst  themselves  (q). 

And  in  a  devise  in  trust  to  sell,  but  not  for  less  than  10,000/., 
and  to  pay  several  sums  amounting  to  7,S00/.,  and  the  overplus 
moneys  arising  from  the  sale  to  A.,  it  was  held  a  specific  legacy  of 
10,000/.,  and  the  sale  producing  less,  that  A.  and  the  others  should 
abate  (?•). 

Such  is  the  advantage  to  which  a  specific  legatee  is  entitled,  that 
he  should  not  contribute  with  the  other  legatees  in  case  of  a  defi- 
ciency.  But,  on  the  other  hand,  he  is  subject  to  a  risk  ;  as,  for  ex- 
ample, if  such  specific  legacy  be  a  lease,  and  there  be  an  eviction  ; 
or  if  goods,  they  be  mislaid  or  burnt ;  or  if  a  debt,  it  be  lost  by  the 
insolvency  of  the  debtor  :  in  all  these  instances  such  specific  lega- 
tees shall  receive  no  contribution  (s). 

[341 J  On  the  same  principle,  legatees  in  certain  circumstances 
are  bound  to  refund  their  legacies,  or  a  rateable  part  of  them,  as  in 
all  cases  of  a  deficiency  of  assets  for  the  payment  of  debts  (t).  If 
the  fund  be  merely  insufficient  to  pay  the  legacies,  and  the  execu- 
tor pay  one  of  the  legatees,  a  distinction  is  to  be  remarked  between 
cases,  where  such  payment  was  voluntary,  and  where  it  was  com- 
pulsory ;  and  also  between  cases  in  which  the  assets  were  originally 
deficient,  and  where  they  became  so  by  his  subsequent  misapplica- 
tion of  them.  If  the  executor  paid  the  legacy  voluntarily,  the  law 
presumes  that  he  has  sufficient  to  pay  all  the  legacies,  and  the  other 
legatees  can  resort  only  against  him.  The  legatee,  who  has  been 
paid,  is  subject  to  no  claim  on  the  part  of  the  other  legatees  («) ; 

(m)  Ibid.  23.  (r)  Page    v.   Leapingwell,    18  Yes. 

(«)  2  Fonbl.  377.  note  (q).     Duke  463. 

of  Devon  v.  Atkvns,  2  P.  Wins.  382.  0)  Hinton  v.  Pinke,  1  P.  Wms.  540. 

Long  v.  Short,  IP.  Wms.  403.     Webb  (?)  2  El.  Com.  513.     Noel  v.  Robin- 

v.  Webb,  2  Vern.  111.  son,  1  Vern.  94.     Hodges  v.  Wadding-- 

(o)  Headley  v.  Redhead,  Coop.  Rep.  ton,  2  Ventr.  360. 

50.  (M)  On-  v.  Raines,  2  Vez.  194.    Ne\y- 

(p)  Vid.  sup.  302.  man  v.  Barton,  2  Vern-  205. 

{q)  Sleech  v.  Thorington,  2  Vez.  563. 

2<J 


841  OF  REFUNDING   LEGACIES,  [BOOK   II  I. • 

provided,  according  to  some  authorities  (v),  the  executor  be  solvent  ; 
but  if  the  executor  prove  insolvent,  so  that  there  are  no  other  means 
of  redress,  a  court  of  equity  will  entertain  a  bill  to  compel  such  lega- 
tee to  refund. 

In  case  the  assets  appear  to  have  been  originally  deficient,  if  the 
executor,  either  voluntarily  or  by  compulsion,  pay  one  of  the  lega- 
tees, the  rest  shall  make  him  refund  hi  proportion.  And,  even  if 
such  legatee  obtain  a  decree  for  his  legacy,  and  be  paid,  the  other 
legatees  may  oblige  him  to  refund  in  the  same  manner.  But  if  the 
executor  had  at  first  enough  to  pay  all  the  legacies,  and,  by  his  sub- 
sequent wasting  of  the  assets,  they  become  deficient,  in  that  case 
[342]  such  legatee  shall  not  be  compelled  to  refund,  but  shall  re- 
tain the  benefit  of  his  legal  diligence  in  preference  to  the  other  lega- 
tees, who  neglected  to  institute  their  suit  in  time  ;  by  which  they 
might  have  secured  to  themselves  the  same  advantage  (w).  (1) 

Nor  is  a  legatee  boupd  to  refund  at  the  suit  of  the  executor,  un- 
less the  payment  by  him  were  compulsory  (x)  ;  or  unless  the  defi- 
ciency were  created  by  debts  which  did  not  appear  till  after  the  pay- 
ment of  the  legacy  (y)  :  in  either  of  which  cases,  the  executor,  as 
well  as  a  creditor,  may  compel  the  legatee  to  refund  the  legacy  ;  for 
an  executor  who  pays"  a  debt  out  of  his  own  purse  stands  in  the  place 
of  a  creditor,  and  has  the  same  equity  as  against  such  legatee  (z).  (2) 

When  the  executor  has  paid  all  the  debts,   and  all  the  legacies 

(v)  On-  v.  Kaines,  2  Vcz.  191.  (,?/)  Nelthrop  v.  Hill,   1  Ch.  Ca.  136. 

(w)  lP.Wms.495.  note  1.   Edwards  {=)  4  Bac.  Abr.  428.     Yin.  Abr.  tit. 

v.  TYeeman,  2  P.  Wms.  446.  Devise,  (Q  d.) 
(.r)  Newman  v.  Barton,  2  Ycrn.  205, 


(1)  Lupton  v.  Lupton,  2  Johns.  Cha.  Rep.  614. 

(2)  By  the  4th  section  of  the  Act  of  21st  March,  1772,  (Purd.  Dig.  518.  1  Dall. 
Laws,  631.  1  Sm.  Laws,  383.)  it  is  provided,  '.'  that  no  suit  shall  be  maintained 
for  any  legacy,  until  reasonable  demand  made  of  the  executor  or  executors,  ad- 
ministrator or  administrators  with  wills  annexed,  who  ought  to  pay  the  same,  and 
an  offer  made  of  two  sufficient  sureties  to  the  said  executor  or  executors,  admin- 
istrator or  administrators  aforesaid,  who,  if  they  think  proper  to  accept  thereof, 
shall  become  bound  to  them,  the  said  executor  or  executors,  administrator  or  ad- 
ministrators aforesaid,  in  double  the  sum  of  the  legacy  given,  where  such  legacy 
is  ascertained  by  the  will,  and  where  not  ascertained  as  aforesaid,  in  double  such 
sum  as  the  person  or  persons  shall  think  him,  her  or  themselves  justly  entitled  to, 
with  condition  underwritten,  that  if  any  part,  or  the  whole  thereof,  shall,  at  any 
time  after,  appear  to  be  wanting  to  discharge  any  debt  or  debts,  legacy  or  lega- 
cies, which  the  said  executor  or  executors,  administrator  or  administrators  shall 
not  have  other  assets  to  pay,  that  then  he  the  said  legatee  shall  return  his  said 
legacy,  or  such  part  thereof  as  shall  be  necessary  for  the  payment  of  the  said 
debts,  or  the  payment  of  a  proportional  part  of  the  said  legacies.  And  if  the 
said  executors  or  administrators  shall  not  think  proper  to  accept  of  such  bond, 
then  the  said  legatee  shall  fde  the  same  with  the  clerk  of  the  court,  before  ob- 
t.uning  any  process  against  the  executor  or  executors,  administrator  or  adminis- 
trators; otherwise,  and  in  default  thereof,  the  process  issued  shall  abate."  See 
IValden's  Ex.  v.  Payne,  2  Wash,  Rep.  I.  Laivrason  v.  Davenport,  2  Call's  Rep. 
95.  Si  (wall's  Ex.  v.  Woodson,  2  Munf.  30:1  Slirpparrf'*  Ex.  v.  Stark,  8  Munf. 
Rep.  29.     Rooiet  v.  Webb',  A  Munf.  77. 


CHAP.  IV.]  OF  PAYMENT  OP  RESIDUUM...  3452 

above-mentioned,  pecuniary  and  specific,  he  must  in  the  last  place 
pay  over  the  surplus  or  residuum  to  the  residuary  legatee  (a).  And 
although  the  residuary  legatee  die  before  payment  of  the  debts,  and 
before  the  amount  of  the  surplus  is  ascertained,  yet  it  shall  devolve 
on  his  representative  (b). 

The  residue,  generally  speaking,  comprehends  such  legacies  as 
have  lapsed  (c)  ;  but  the  testator  may  by  the  terms  of  the  will  so 
[343]  circumscribe  and  confine  the  residue,  as  that  the  residuary 
legatee,  instead  of  being  a  general  legatee,  shall  be  a  specific  legatee, 
and  then  he  shall  not  be  entitled  to  any  benefit  accruing  from  lapses, 
unless  what  shall  have  lapsed  constitute  a  part  of  the  particular  resi- 
due :  as  where  A.  on  board  a  ship  made  his  will,  and  gave  to  his 
mother,  if  alive,  his  gold  rings,  buttons,  and  chests  of  clothes,  and 
to  his  executor,  who  was  on  board  with  him,  his  red  box,  arrack, 
and  all  things  not  before  bequeathed  ;  and  at  the  time  of  making  his 
will  was  entitled  to  a  considerable  leasehold  estate  by  the  death  of 
his  father,  of  his  right  to  which  he  was  ignorant :  It  was  held  that 
A.'s  executor  was  legatee  of  a  particular  residue,  namely,  of  what 
the  testator  had  on  board  the  ship,  and  such  legacy  excluded  him 
from  the  general  residue.  But  that  as  A.'s  mother  died  in  his  life- 
time, his  rings,  buttons,  and  chests  of  clothes  lapsed  into  such  par- 
ticular residue,  and  devolved  on  his  executor,  not  as  executor,  but 
as  legatee  of  such  particular  residue  (d). 

If  the  residuary  estate  be  devised  to  A.  B.  and  C.  in  joint  tenan- 
cy, if  A.  die  in  the  lifetime  of  the  testator,  or  if  A.  die  after  the  tes- 
tator, but  before  severance  of  the  joint  tenancy  in  the  residue,  it 
shall  survive  to  the  two  others  (e).  But  if  it  be  given  to  A.  B.  and 
C.  as  tenants  in  common,  on  the  death  of  one  of  them  in  the  lifetime 
of  the  testator,  his  share  shall  not  go  to  the  survivors,  but  shall  de- 
volve on  the  testator's  next  of  kin,  according  to  the  statute  of  dis- 
tribution, as  so  much  of  the  personal  estate  remaining  undisposed  of 
by  the  will  (/). 

So  if  a  third  oft  the  residuum  be  devised  to  each  of  three  persons, 
and  one  of  them  die  in  the  testator's  lifetime  (g)  ;  (1)  or  if  the  de- 
vise be  revoked  as  to  one  of  such  residuary  legatees,  the  conse- 
quence shall  be  the  same  (h). 

If  A.  bequeath  all  the  surplus  of  his  personal  estate  after  payment 
of  the  debts  and  legacies,  to  J.  S. ,  and  several  creditors,  although 
barred  by  the  Statute  of  limitations,  commence" actions  against  the 

(a)  2  Bl.  Com.  514.  4  Bac.  Abr.  428.  (  f)  Bagwell  v.  Dry,  1  P.  Wms.  700. 

(b)  Brown  v.  Farndell,  Carth.  52.  Cray  v.  Willis,  2  P.  Wms.  529. 

(c)  Jackson  v.  Kelly,  2  Vez.  285.  (g)  Bagwell  v.  Drv,  1  P.  Wms.  700. 

(d)  Cook  v.  Oakley,  1  P.  Wms.  302.  Page  v.  Page,  2  P.  Wms.  488. 

(e)  Webster  v.  Webster,  2  P.  Wms.         (/;)  6  Bro.  P.  C  1. 
347. 


(1)   Craighead  ct  iTx.  v.  Given,  JLdm.  10  Serg.  &.  Rawle,  351. 


343  OF  PAYMENT  OF  RESIDUUM1.  [BOOK  III. 

executor,  oti  liis  refusal  to  plead  the  statute,  equity  will  not,  in  fa- 
vour of  such  residuary  legatee,  compel  him  to  plead  it  (i). 

It  is  a  general  rule,  that  where  a  question  arises  between  a  lega- 
tee, or  a  party  entitled  to  a  portion,  and  the  residuary  legatee,  the 
costs  shall  come  out  of  the  residue  ;  yet  if  no  question  arise  between 
such  individual  and  the  residuary  legatee,  but  the  question  relate 
merely  to  the  nature  of  the  interest  of  the  property  severed  from  the 
general  mass  of  the  estate,  the  costs  of  originating  that  question  are 
thrown  on  the  specific  property  itself:  as  where  the  testator  direct- 
ed his  executors  to  purchase  92/.  per  annum  Bank  Long  Annuities, 
in  trust  for  his  sister  for  life,  and  after  her  decease,  the  principal  to 
be  distributed  among  certain  persons,  and  the  executors  purchased 
the  long  annuities  accordingly,  and  invested  the  same  in  their  names, 
and  after  a  lapse  of  17  years  the  tenant  for  life  died,  when  a  question 
arose  in  respect  of  the  nature  of  the  interest,  which  had  been  so  long 
separated  from  the  residuary  estate.  Lord  Eldon,  C.  on  appeal 
from  the  Rolls,  held,  that  the  costs  of  the  suit  relative  to  the  trust 
fund,  the  right  to  which  was  in  question  in  the  cause,  should  be 
paid  out  of  the  same  :  and  that  his  Honour's  decree,  directing  that 
the  costs  should  be  paid  out  of  the  testator's  general  estate,  should 
in  that  particular  be  varied  (k). 

[344]  If  there  be  no  residue,  the  residuary  legatee  has  a  claim  to 
nothing.  In  no  case  shall  he  compel  the  other  legatees  to  abate,  for 
although  this  consideration  might  occasionally  meet  the  testator's 
intention,  }^et  it  would  in  most  instances,  lead  to  great  confusion 
and  embarrassment  (/).  But  it  has  been  held,  that  if  the  exeGUtor 
be  guilty  of  a  devastavit,  the  residuary  legatee  shall  not  suffer  ex- 
clusively ;  but  on  a  deficiency  of  assets  in  consequence  of  such  mis- 
conduct, shall  come  in  pari  passu  with  the  other  legatees,  Yet 
according  to  that  decision,  the  Court  had  it  not  in  contemplation  to 
afford  the  residuary  legatee  relief  in  case  the  testator  had  spent  the 
residue  in  his  lifetime  ;  for  the  inquiry  directed  was  not  what  per- 
sonal estate  the  testator  had  at  the  time  of  making  his  will,  but  what 
estate  he  had  at  his  death  (m). 


Sect.  VIII. 

Of  an  executor' 's  being  legatee  ;  and  herein  of  his  assent  to  his 

own  legacy. 

In  case  of  a  legacy  bequeathed  to  the  executor,  if  he  take  posses- 

(;')  4  Bac.  Abr,  429.    1  Eq.  Ca.  Abr.  562. 

309.     11  Vin.  Abr.  269.     Lord  Castle-  (/)  Fonnereau  v.  Poyntz,  1  Ero.  Ch. 

ron  v.  Lord  Fanshaw,  Prec.  Chan.  100.  Rep.  478.     1  P.  "Wins.  306.  note  2. 

Kx  parte  Dewdney,  15  Ves.  jun.  498.  (m)  1  P.  Wins.  305  8c  306,  note  1 

(A)  Jenour  v.  Jenour,   10  Ves.  jun.  and  2. 


CHAP.  IV.]  OF  AN  EXECUTOR'S  BEING  LEGATEE.      344 

sion  of  it  generally,  he  shall  hold  it  as  executor,  which  is  his  first 
and  general  authority  (a). 

[345] 'The  union  of  the  two  characters  of  executor  and  legatee, 
in  one  and  the  same  person,  makes  no  difference  (b).  His  assent  is 
as  necessary  to  a  legacy  vesting  in  him  in  the  capacity  of  legatee,  as 
to  a  legacy's  vesting  in  any  other  person,  and  that  on  the  same 
principle.  Till  he  has  examined  the  state  of  the  assets,  he  is  incom- 
petent to  decide  whether  they  will  admit  of  his  taking  the  thing  be- 
queathed as  a  legacy  ;  or  whether  it  must  not  of  necessity  be  appli- 
ed in  satisfaction  of  debts  (c). 

His  assent  to  his  own  legacy  may,  as  well  as  his  assent  to  that  of 
another  legatee,  be  either  express  or  implied.  He  may  not  only  in 
positive  terms  announce  his  election  to  take  it  as  a  bequest,  but  such 
election  may  also  be  implied  from  his  language,  or  his  conduct  (c/). 
As  if  he  say,  that  he  will  have  it  according  to  the  will,  that  amounts 
to  an  assent  to  have  it  as  legatee  (e).  So,  if  a  term  be  devised  to 
A.  the  executor  for  life,  and  afterwards  to  B. ,  if  he  say  that  B.  will 
have  it  after  him,  that  implies  an  election  to  take  it  as  legatee  (/). 
So  if  by  deed  reciting  that  he  has  a  term  for  years  by  devise,  he 
grants  it  over  (g) ;  or  if  he  take  the  profits  of  it  to  his  own  use  (h); 
or  if  he  repair  the  tenements  devised  at  his  own  expence  (i) ;  all 
these  acts  indicate  an  assent  to  the  bequest :  in  like  manner,  if  he 
perform  a  condition  or  trust  annexed  to  the  devise  ;  as,  if  a  lessee 
[346]  for  years  devise  his  term  to  his  executor,  on  condition  that 
he  shall  pay  ten  pounds  to.J.  S.,  which  he  pays  accordingly  :  this 
payment  amounts  to  an  election  on  his  part  to  take  the  lease  as  a 
legacy,  and  it  is  in  law  an  execution  of  the  legacy  for  ever  ;  for  he 
who  performs  the  charge  of  a  thing  claims  the  benefit  which  is  an- 
nexed to  it  (&).  So,  if  a  lease  be  devised  to  an  executor  during  the 
minority  of  the  testator's  son,  in  order  that  the  executor  may  edu- 
cate him  out  of  the  profits,  if  he  educate  him  accordingly,  this  con- 
stitutes an  assent  to  take  the  lease  by  way  of  legacy,  and  not  as  ex- 
ecutor (/) ;  or  if  he  excludes  a  co-executor  from  a  joint  occupancy  of 
the  term  with  him  (m),  that  is  also  an  agreement  to  the  legacy.  An 
assent  to  take  part  as  a  residuary  legatee,  is  an  assent  also  to  take 
the  whole  residue  in  the  same  character  (n). 

But  till  the  executor  has  made  his  election,  either  express  or  im- 
plied, he  shall  take  the  legacy  as  executor,  though  all  the  debts 
have  been  paid,  independently  of  such  bequest  (o). 

(«)    3  Ba<;.  Abr.    84.      13    Co.   47.  (e)  1  Roll.  Abr.  920. 

Plowd.  520.  543.     10  Co.  47  b.    Dyer,  (h)  Ibid.  619. 

277  b.     Young  v.  Holmes,  Stra.  70.  (t)  Semb.  Cheney's  case,  1  Leon.  L' 1 6. 

(b)  Off.  Ex.  22.  (*)  Plowd.  544. 

(c)  Ibid.  27.  2.  (/)  Ibid.  539. 

(d)  Com.  Dig.  Admon.  C.  6.7.   Gar-         (m)  Over,  277  b. 
ret  v.  Lister,  1  Lev.  25.  C")  2  Boll,  Rep.  15$ 

(c)  Garret  v.  Lister,  I  Lev.  25,  (o)  Com.  Dig.  Adtnon.  C.  5     I  f  ■=   n 

if)  Garret  v.  Lister,  1  Lev.  25.  216. 


346  OF  an  executor's  being  legatee,     [book  III. 

Nor  is  the  entry  of  an  executor,  whether  before  or  after  probate, 
on  the  term  devised  to  him,  an  election  to  take  it  as  legatee  (p). 
Nor,  if  he  merely  say,  that  the  testator  left  all  to  him  [q],  will  so 
ambiguous  an  expression  have  that  effect.  Yet  if  an  executor  being 
[347]  also  devisee  of  a  term,  grant  a  lease  of  it  by  the  name  of  ex- 
ecutor, that  amounts  to  a  claim  in  such  capacity  (r). 

If  a  legacy  be  left  to  A.  as  executor,  whether  expressly  for  his 
care  and  trouble,  or  not,  he  must  prove  the  will  (s),  (1)  and  either 
act,  or  distinctly  shew  his  intention  to  act,  before  he  shall  become 
entitled  to  it  (/).  And  although  an  executor  prove  the  will,  yet  if 
he  do  not  appear  to  have  clone  it  with  an  intention  of  really  acting 
in  the  execution  of  it,  he  is  not  entitled  to  his  legacy  («). 

Where  however  a  testator  named  two  persons  to  be  his  executors, 
and  gave  them  50/.  each,  upon  condition  of  their  taking  upon  them- 
selves a  certain  trust,  and  afterwards  used  these  words,  "  I  give  to 
my  cousin  J.  K.  50/.  whom  I  appoint  joint  executor,"  and  the  tes- 
tator also  gave  to  J.  K.'s  sisters,  legacies  of  50/.  each  :  it  was  held, 
that  the  legacy  to  J.  K.  was  not  annexed  to  the  office  of  executor, 
and  that  he  was  entitled  to  it,  although  he  had  declined  to  act  in  the 
trusts  of  the  will  {y).  (2) 

Nor  has  an  executor  a  right  to  give  himself  a  preference  in  re- 
gard to  a  legacy,  as  in  the  instance  of  a  debt. 

In  the  case  of  a  legacy  to  a  trustee,  given  as  a  token  of  regard  and 
recompence  for  his  trouble,  payable  within  twelve  calendar  months, 
after  the  decease  of  the  testatrix,  no  refusal  or  neglect  to  act  where 
necessary  appearing,  and  the  trustee  dying  nineteen  months  after 
the  testatrix  without  having  acted,  the  trustee  was  held  entitled  to 
the  legacy  (w). 

The  rules  above  stated  in  respect  to  the  abatement  and  refunding 
of  legacies,  in  the  case  of  legatees  in  general,  apply  equally  to  the 
case  where  the  same  person  is  both  executor  and  legatee  (#),  and  al- 
though the  bequest  was  merely  as  a  recompence  for  his  executing 
the  trust  (y). 

(p)  Com.  Dig.  Admon.  C.  7.     Off.  (u)  Harford   v.   Browning,    1  Cox's 

Ex.  226.  Rep.  302.    Freeman  v.  Fairlie,  3  Meriv. 

(q)  1  Roll.  Abr.  620.  Rep.  31. 

O)  1  Leon.  216.  («)  Dix  v.  Reed,  1  Sim.  &.  Stu.  237. 

.(«)  Reed  v.  Devavnes,  2  Cox's  Rep.  (w)  Brydges  v.  Wotton,  1  Ves.  and 

285.                                                            *  Bea.  134." 

(/)    Reed  v.  Devaynes,   3  Bro.  Ch.  (x)  2  Bl.  Com.  502.     Plowd.  545,  in 

Rep.  95.     Abbot  v.  Massie,  3  Ves.  jun.  note. 

148.     Harrison  v.  Rowley,  4  Ves.  jun.  (?/)   4  Bae.  Abr.  417.  •  Fretwell  v. 

212.      Stackpoole  v.   Howell,   13  Ves.  Stacy,  2  Vern.  434.     Attorney-General 

jun.  417.  v.  Robins,  2  P.  Wms.  25. 


(1)  Rothmfikr's  Jr/m.  v.  Myers,  Ex.  4  Desaus.  Rep.  215. 

(2)  So  a  legacy  given  to  an  executor  as  nephew  of  the  testator — he  is  entitled 
to  the  legacy,  though  ho  renounce  the  executorship.  Granbory  v.  GiOnberrys, 
1  Wash.  Rep.  246. 


CHAP.   IV.]         A  DEBTOR'S  BEING  EXECUTOR.  347 


Sect.  IX. 

Of  the  testator's  appointing  his  debtor  executor — when  the  debt 
shall  be  regarded  as  a  specific  bequest  to  him — when  not. 

If  a  creditor  appoint  the  debtor  his  executor,  the  effect  of  such 
an  appointment  is  to  be  considered,  first  at  law,  and  then  in  equity. 
In  point  of  law,  such  nomination  shall  operate  as  a  release,  and  ex- 
tinguishment of  the  debt ;  (1J  on  the  principle  that  a  debt  is  mere- 
[348]  ly  a  right  to  recover  the  amount  by  way  of  action,  and  as  an 
executor  cannot  maintain  an  action  against  himself,  his  appointment 
by  the  creditor  to  that  office  discharges  the  action,  and,  consequent- 
ly, discharges  the  legal  remedy  for  the  debt  (a).  Thus,  if  the  obli- 
gee of  a  bond  make  the  obligor  executor,  this  amounts  to  a  release 
at  law  of  the  debt  (6)  :  If  several  obligors  be  bound  jointly  and  se- 
verally, and  the  obligee  constitute  one  of  them  his  executor,  it  is 
an  extinguishment  of  the  debt  at  law,  and  the  executor  is  incapable 
of  suing  the  other  obligors  (c).  The  debt  is  in  like  manner  releas- 
ed where  only  one  of  several  executors  is  indebted  to  the  testator, 
for  one  executor  cannot  maintain  an  action  against  another  (d)  ;  and 
after  the  death  of  such  executor,  the  surviving  executors  cannot  sue 
his  representative  for  the  debt  (e).  (2)  Nor  is  the  case  varied  by  the 
executor's  dying  without  having  proved  the  will,  or  having  admin- 
istered (f),  or  even  by  his  refusal  to  act  with  his  co-executors  (g), 
unless  he  formally  renounced  the  office  in  the  spiritual  court  :  such 
a  renunciation,  indeed,  shall  prevent  the  release  of  his  debt  :  for  he 

(a)  3  Bac.  Abr.  11.    2  Bl.  Com.  511,  (d)  Ibid.  31. 

512.    Off.  Ex..  31.    Wankford  v.  Wank-  (e)  Ibid.    32.      Plowd.    264.      Cros- 

ford,  Salk.  299.     Plowd.   186.      Com.  man's  case,  Leon.  320. 

Dig.  Admon.  B.  5.    Roll.  Abr.  920,  921.  (/)  Wankford  v.   Wankford,   Salk. 

5  Co.  30.    Harg.  Co.  Litt.  264  b.  note  1.  300.  Plowd.  184.  Off.  Ex.  31. 

(6)  8  Co.  136.  (g)   Wankford   v.   Wankford,    Salk. 

(c)  Off.  Ex.  31.     11  Vin.  Abr.  398.  308. 


(1)  Puseyv.  Clemson,  9  Sen*.  &.  Rawle,  208.  Stevens,  Mm.  v.  Gaylord,  11 
Mass.  Rep.  266. 

(2)  By  the  second  section  of  the  Act  of  April  3d,  1829,  (Pamph.  Laws,  122.)  it 
is  provided,  "that  in  all  cases  where  a  creditor  hath  appointed  or  shall  appoint 
his  judgment  debtor  his  executor,  and  the  said  judgment  is  a  lien  on  the  real  es- 
tate of  such  executor,  and  the  same  is  bequeathed  specifically  to  a  legatee,  or 
generally  in  the  residuary  clause  of  such  testator's  will;  or  where  any  testator, 
having  a  judgment  situate  as  aforesaid,  shall  have  creditors  interested  in  preserv- 
ing the  lien  of  such  judgment,  that  such  legatee  or  creditors  so  interested  in  such 
judgment,  may  suggest  their  interest  in  the  same  upon  the  record  thereof,  and 
issue  a  writ  of  scire  facias  against  the  defendant  to  revive  the  same,  and  continue 
the  lien  thereof  at  any  time  when  such  proceedings  shall  be  necessary  under  the 
laws  of  this  commonwealth,  which  judgment  so  revived  shall  remain  a  lien  for 
die  use  of  ;ill  persons  interested  therein." 


348        a  debtor's  bring  executor.   [book  III. 

could  no  more  be  compelled  to  accept  a  release,  than  a  deed  of 
grant  (h). 

In  all  these  rases  the  legal  remedy  is  destroyed  by  the  act  of  the 
party,  and  therefore,  is  forever  gone  (*)  ;  but  the  effect  is  different 
[349]  where  it  is  suspended  merely  by  the  act  of  law  (k)  ;  as  if  ad- 
ministration of  the  effects  of  a  creditor  be  committed  to  the  debtor, 
this  is  only  a  temporary  privation  of  the  remedy  by  the  legal  oper- 
ation of  the  grant  (/)  :  Thus,  if  the  obligor  of  a  bond  administer  to 
the  obligee,  and  die,  a  creditor  of  the  obligee  having  obtained  ad- 
ministration cle  bonis  non,  may  maintain  an  action  for  such  debt 
against  the  executor  of  the  obligor  (m).  So,  if  the  executrix  of  an 
obligee  marry  the  obligor,  such  marriage  is  no  release  of  the  debt, 
for  the  testator  has  done  no  act  to  discharge  it,  and  the  husband  may 
pay  it  to  the  wife  in  the  character  of  executrix.  If  he  do  not,  the 
remedy  is  suspended  merely  by.  the  legal  effect  of  the  coverture, 
and  on  her  death,  the  administrator  cle  bonis  non  of  the  testator 
will  be  equally  entitled  to  that  debt,  as  to  any  others  outstanding  (n). 
It  seems  also,  that  the  naming  of  a  debtor  executor  durante  minor - 
itale  is  no  discharge  of  the  debt,  since  he  is  only  executor  in  trust 
for  the  infant  till  he  comes  of  age  (o). 

In  equity,  the  consequence  of  the  testator's  nominating  his  debt- 
or executor  is  to  be  regarded,  first,  with  reference  to  creditors  ;  and 
then,  to  legatees. 

As  against  the  testator's  creditors,  (1)  equity  will  never  permit 
him  by  constituting  his  debtor  executor  to  disappoint  them  :  There- 
fore, where  the  testator  has  not  left  a  fund  sufficient  for  the  pay- 
ment of  his  own  debts,  in  that  case,  the  debt  of  his  executor  shall 
be  assets  ;  the  duty  remaining,  although  the  action  at  law  be  gone, 
and  the  executor  shall  be  liable  to  account  for  such  debt  in  the 
spiritual  court,  or  in  a  court  of  equity.  It  were  highly  unreasona- 
ble that  the  claims  of  creditors  should  be  defeated  by  a  release, 
which  was  absolutely  voluntary  {p).  In  respect  to  legatees,  equi- 
ty will,  generally  speaking,  allow  the  appointment  of  a  debtor  exe- 
[350]  cutor  to  operate  as  a  discharge  of  his  debt.  For  the  debt  is 
considered  in  the  light  of  a  specific  bequest  or  legacy  to  the  debtor, 
for  the  purpose  of  discharging  the  debt,  and  therefore,  though  like 

(h)  Wankford    v.   Wankford,    Salk.  (n)  Crosman's  case,  Leon.  320.  Cros- 

."07.  man  v.  Reade,  Moore,  236.     Wankford 

(7)  Dorchester  v.   Webb,   Cro.  Car.  v.  Wankford,  Salk.  306. 

.373.     Wankford    v.   Wankford,    Salk.  (o)  11  Viner's  Abr.  400.     Caweth  v. 

302.  Abram  v.  Cunning-ham,  1  Ventr.  Philips,  Lord  Raym.  605. 

303.  (p)  Wankford    v.  Wankford,  Salk. 
(/r)  Wankford    v,   Wankford,    Salk.     302,  306.     Off.   Ex.  31.     2  Bl.    Com. 

303.  •  512.    Plowd.  186.    Shep..  Touchs.  497, 

(/)  Off.  Ex.  32.     8  Co.  136.  498.     Simmons  v.  Gutteridge,   13  Yes. 

(m)  Lockierv.  Smith,  Sid.  79.  264. 

(1)  Pvsey  v.  Clemson,  9  Serg\  &  Rawle,  204.  JVood  v.  Tullmun  and  Wood- 
ward's  Executors,  Coxe's  N.  J.  Rep.  153!  Stevens,  Adin.  v.  Gaylord,  11  Mass, 
Rep.  266. 


CHAP.   IV.]  A  DEBTORS  BEING  EXECUTOR.  350 

all  other  legacies,  it  shall  not  be  paid,  or  retained  till  the  debts  are 
satisfied,  yet  the  executor  has  a  right  to  it  exclusive  of  the  other  le- 
gatees (q). 

But  this  rule  witb  reference  to  legatees,  is  subject  to  a  great  vari- 
ety of  exceptions.  I  n  equity  such  debt  shall  not  be  released,  even  as 
against  legatees, (1)  if  the  presumption  arising  from  the  appointment 
of  a  debtor  to  the  executorship  be  contradicted  by  the  express  terms 
of  the  will :  or  by  strong  inference  from  its  contents.  As  where  a 
testator  leaves  a  legacy,  and  directs  it  to  be  paid  out  of  a  debt  due 
to  him  from  the  executor  ;  such  debt  shall  be  assets  to  pay  not 
merely  that  specific  legacy,"  but  all  other  legacies  (r).  In  like  man- 
ner, if  he  leave  the  executor  a  legacy,  it  is  held  to  be  a  sufficient 
indication,  that  he  did  not  mean  to  release  the  debt.  And  in  such 
case,  the  executor  shall  be  trustee  to  the  amount  of  the  debt  for  the 
residuary  legatee,  or  next  of  kin  (s).  So  where  a  testator  bequeath- 
ed large  legacies,  and  also  the  residue  of  his  estate,  to  his  executors, 
one  of  whom  was  indebted  to  him  by  bond  in  three  thousand  pounds, 
it  was  decreed  that  this  debt  should  be  added  to  the  surplus,  and 
that  both  executors  were  equally  entitled  to  it  (/).(2)  So  where  a 
debtor  to  the  testator  was  appointed  executor,  although  without  a 
legacy,  yet  it  appearing  by  the  tenor  of  the  will,  that  the  testator 
considered  him  in  the  light  of  a  mere  trustee  of  his  whole  property, 
his  debt  was  clearly  held  not  to  be  discharged  (w).  So  where  A. 
mortgaged  his  estate  to  B.  who  paid  no  money  in  consideration  of 
the  mortgage,  but  gave  him  a  bond  for  1 30/.  and  then  A.  died,  having 
appointed  B.  his  executor,  the  bond  was  decreed  to  be  assets  in  the 
hands  of  B.,  and  applicable,  after  payment  of  the  funeral  expences 
and  legacies,  to  the  exoneration  of  the  real  estate  in  favor  of  the 
heir  [w). 


[351]     Sect.  X. 

Of  the  residue  undisposed  of  by  the  will,  when  it  shall  go  to  the 
executor — when  not. 

If  the  testator  make  no  disposition  of  the  residue,  a  question  arises, 

(a)  2  Bl.  Com.  512.     Harg.  Co.  Lit.  (/)   Brown    v.    Selwyn,    Ca.  Temp. 

264  b.  note  1.  Talbot,  240.    4  Bro.  P.  C.  180.    3  Bac. 

(r)  3  Bac.  Abr.    11.     Flud  v.  Rum-  Abr.  12. 

cey,  Yelv.  160.  (u)  Berry  v.  Usher,  11  Ves.  jun.  87. 

(a)  Carey  v.  Goodinge,    3  Bro.  Ch.  (w)  Fox  v.  Fox,  1  Atk.  463. 
Rep. 110. 

(1)  Woodx.  Tollman's  Ex.  el  al.  Coxe's  N.  J.  Rep.  158.   ' 

(2)  Pusey  v.  Clemson,  9  Serg.  &  Rawle,  204.  See  also  Fleming  v.  Boiling, 
3  Call,  75 ;  Hall  v.  Hall,  2  M'Cord's  Cha.  Rep.  304;  Winship  v.  Bass,  12  Mass. 
Rep.  199  ;  cases  in  which  the  rule  did  not  prevail  as  against  residuary  legatees, 
the  debt  due  by  the  executor  being  held  assets  for  their  payment. 

30 


351  THE  RESIDUE  UNDISPOSED  OF.  [BOOK  III. 

to  whom  it  shall  belong,  and  this  is  a  subject  which  involves  in  it  a  ■ 
great  variety  of  distinctions  (a). 

The  result  of  the  numerous  cases  on  this  subject  appears  to  be 
this  : 

The  whole  personal  estate  of  the  testator  is,  in  point  of  law,  de- 
volved on  the  executor  ;  and  if  after  payment  of  the  funeral  expen- 
ces,  testamentary  charges,  debts,  and  legacies,  there  shall  be  any 
surplus,  it  shall  vest  in  him  beneficially. 

If  it  shall  appear  on  the  face  of  the  will,  either  expressly,  or  by 
sufficient  implication,  that  the  testator  meant  to  confer  upon  him 
merely  the  office,  and  not  the  beneficial  interest,  equity  will  con- 
vert the  executor  into  a  trustee  for  those  on  whom  the  law 
[352]  would  have  cast  the  residue  in  case  of  a  complete  intesta- 
cy ;  that  is  to  say,  the  next  of  kin.  -  As,  where  the  testator  has 
styled  him  in  his  will  an  executor  in  trust,  or  has  used  other  ex- 
pressions of  the  same  import  (b).  But  an  executor  being  called  a 
trustee  as  to  specific  trusts  imposed  upon  him  distinct  from  his  ap- 
pointment as  executor,  will  be  entitled  to  the  residue,  as  no  infer- 
ence can  be  drawn  therefrom  of  the  testator's  intention  to  make  him 
a  trustee  of  the  residue.  And  executors  taking  the  residue,  take  it 
precisely  in  the  same  plight  as  residuary  legatees  would  take  it(c). 
Where  the  testator  appointed  the  American  ambassador  his  executor, 
or  such  other  person  as  should  be  the  American  ambassador  at  the 
time  of  the  testator's  death,  Sir  William  Grant,  M.  R.  held  that  to 
be  a  circumstance  connected  with  others  indicative  of  an  intention 
to  confer  upon  him  the  office  only,  he  being  appointed  not  in  his-in- 
dividual  character  and  as  a  friend,  but  in  the  capacity  of  minister  (d). 
So,  where  the  testator  has  begun  to  make  a  disposition  of  the  sur- 
plus, but  has  not  proceeded  to  complete  it,  there  also  the  executor 
shall  be  excluded.  As  where  a  residuary  clause  is  inserted  in  the 
will,  and  the  testator  has  omitted  to  name  the  residuary  legatee  (e). 
But  a  blank  space  between  the  last  line  of  a  will  and  the  signature 
raises  no  presumption  of  an  intention  to  dispose  of  the  residue 
against  the  legal  right  of  the  executor  (/.).  Where  an  executor 
has  general  and  specific  legacies,  not  expressly  for  his  care  and 
trouble,  upon  the  evidence  raising  no  direct  intention  in  his  favour, 
but  mere  inference  from  equivocal  declarations,  with  an  intention 

(a)  1  P.  Wms.  550.  note  1.   2  Fonhl.     Ves.  jun.  247. 

131,  note  (k).  3  Bac.  Abr.  67.    llVin.  (d)  Urquhart  v.  King,   7  Ves.  jun. 

'Abr.  407.  230.     See  also    Griffiths    v.  Hamilton, 

(b)  1  P.  Wms.  550.  note  1.    Pshigv.     12  Ves.  jun.  309. 

Pring,  2  Vern.  99.     Rachfield  v.  Care-  (e)   1  P.  Wms.  550,  note  1.  Wheeler 

less,'2  P.  Wms.  158.   Gray  don  v.  Hicks,  v.  Sheer,  Moseley,  288.    Bp.ofCloyne 

2  Atk.  18.     Dean  v.  Dalton,  2  Bro.  Ch.  v.  Young,   2  Ves.  91.     Lord  North  v. 

Rep.  634.    Bennet  \.  Batchelor,  3  Bro.  Purdon,  495.  .Hornsby  v.  Finch,  2  Ves. 

Ch.  Rep.  28.     Wheeler  v.  Sheer,  Mose-  jun.  78.    Vid.  also  Mordaunt  v.  Hussey, 

ley,  288.      Lockyer  v.   Simpson,  301.  4  Ves.  jun.  117.  and  Giraud  v.  Hanbu- 

Bennet  v.  Batchelor,  1  Ves.  jun.  63.  rv,  3  Meri.  Rep.  150. 

(c)  Pratt  v.  Sladden,  14  Ves.  jun. '193.  (/)  White  v.  Williams,  3  Ves.  and 
Dawson  v.  Clark,  15  Ves.  jun. '409.    18  Bea.  72.   S.  C.  Coop.  Rep.  58. 


CHAP.   IV.]         THE  RESIDUE  UNDISPOSED  OF.  352 

to  make  an  express  residuary  disposition,  the  executor  will  he  a 
trustee  of  the  residue  (g).  So  the  executor  shall  be  excluded  where 
the  residuary  clause  is  rased  and  become  illegible  (A)-  Nor  where 
the  testator  has  regularly  bequeathed  the  surplus,  although  the  re- 
siduary legatee  first  die,  and  consequently  it  be  undisposed  of  at 
the  time  of  the  testator's  death,  shall  it  belong  to  the  executor  («). 
Nor  shall  the  executor  be  entitled  to  it  where  the  testator  has  given 
him  a  legacy  expressly  for  his  care  and  trouble  ;  for  that  is  a  strong 
case  on  which  to  raise  a  resulting  trust,  not  merely  on  the  absurdi- 
ty of  supposing  a  testator  to  give  a  part  of  the  fund  to  that  person 
for  whom  he  intended  the  whole,  but  as  it  is  evidence  that  he  con- 
sidered him  as  a  trustee  for  some  other,  who  should  be  the  object 
of  the  care  and  trouble  for  which  the  bequest  was  meant  as  a  com- 
pensation (k).  Still,  however,  the  principle,  that  it  shall  not  be 
presumed  to  have  been  the  testator's  meaning  thus  to  give  part  and 
[353]  all  to  the  executor,  has  been  allowed  alone  and  unaided  to 
operate  as  an  exclusion.  Hence  it  is  a  settled  rule  in  equity,  that 
a  pecuniary  legacy  bequeathed  to  an  executor  alone,  or  to  an  ex- 
ecutor who  is  also  a  trustee,  affords  a  sufficient  argument  to  debar 
him  of  the  residue  (7).  (1) 

A  direction  in  a  will  "to  keep  accounts,"  was  held  upon  de- 
murrer, to  afford  a  presumption  that  the  executrix  was  not  meant 
to  take  beneficially  ;  but  parol  evidence  being  admitted  on  be- 
half of  the  executrix,  to  shew,  that  she  was  intended  to  take  the 
residue  for  her  own  benefit,  and  such  evidence  being  satisfactory, 
the  bill  by  the  next  of  kin  was  dismissed  (?n). 

A  beqtiest,  that  the  whole  of  the  testator's  property  shall  pass 
by  his  codicil  "  according  to  law,"  will  exclude  the  executor,  and 
make  him  a  trustee  for  the  next  of  kin  (n).  (2) 

(g)  Langham  v.   Sandford,  17  Ves.  2  Atk.  46. 

jun.  435.  and  on  appeal,  19  Ves.  641.  (/)  1  P.  Wms.  550,  note  1.    2  Fonbl. 

2  Meri.  Rep.  6.  131,  note  (k).     Ball  v.  Smith,  2  Vern. 

(A)  Farrington  v.  Knightly,  1  P.  Wms.  676.   Joslin  v.  Brewitt,  Bunb.  112.   Far- 

549.  rington  v.  Knightly,    1  P.  Wms.  544. 

(i)  1  P.  Wms.  550,  note  1.   Nicholls  Davers  v.  Davers,  3  P.  Wms.  40.  Prec. 

v.  Crisp,  Ambl.  769.  Bennet  v.  Batche-  Ch.  107.     tiihbs  v.  Rumsey,  2  Ves.  and 

lor,  3  Bro.  Ch.  Rep.  28.  Bea.  294.     Bull  v.   Kingston,  1   Meri. 

(k)  2  Fonbl.  131,  note  (k).     Bp.  of  Rep.  314. 

Cloyne  v.  Young,  2  Ves.  97.     Foster  v.  (m)  Gladding  v.  Yapp,  5  Madd.  Rep. 

Munt,  1  Vern.  473.     Rachfield  v.  Care-  56. 

less,  2  P.  Wms.  15S.  Cordell  v.  Noden,  (it)  Ld.  Cranley  v.  Hale,  14  Ves.  jun. 

2  Vern.  148.     Newstead-  v.  Johnston,  307. 

(1)  Where  there  are  several  executors,  and  unequal  legacies  are  given  to  them, 
they  were  not  excluded  from  the  residue  in  Virginia  before  the  Act  of  1785, 
c.  61.  Shelton  v.  Shelton's,  Cranberry's  Ex.  v.  Granberry,  1  Wash.  Rep.  53.  246. 
Dykes  V.  Woodhouse's  Jldm.  3  Rand.  Rep.  288. 

(2)  So  where  the  testator  ordered  all  the  residue  and  remainder  of  his  personal 
^estate  (except  his  dining  table  and  two  stoves)  to  be  sold  by  public  sale  by  his 

executors,  or  the  survivor  of  them,  as  soon  as  might  be  after  his  decease,  to  the 
best  advantage,  it  was  held  that  this  direction  made  them  trustees  for  the  next  of 
kin       Grosser  v.  Eckart,  I  Binn.  575.' 


353  THE  RESIDUE  UNDISPOSED  OF.  [BOOK   III. 

If  the  legacy  to  the  executor  be  specific,  it  shall  equally  exclude 
him  (o).  Nor  will  the  rule  be  varied  by  the  testator's  having  be- 
queathed legacies  to  the  next  of  kin  (p).  For  it  is  founded  rather 
on  an  implied  intent  to  bar  the  executor,  than  to  create  a  trust  for  the 
next  of  kin  ;  and,  therefore,  if  the  executor  have  a  legacy,  and  there 
be  no  next  of  kin,  a  trust  shall  result  for  the  crown  (g).  It  is  also 
settled,  that  in  case  the  widow  of  the  testator  be  executrix,  she  is, 
in  respect  to  the  residue,  precisely  in  the  same  situation  as  any 
other  person  appointed  to  the  office  (r) ;  unless  the  bequest  to  her 
of  a  specific  legacy,  consisting  of  property  which  was  hers  before 
marriage,  may  vary  the  rule  (s). 

Executors  entitled  to  the, residue  undisposed  of  will  take  a  lega- 
cy to  a  charity  void  by  the  statute  9  Geo.  2.  c.  36.  for  their  own 
benefit,  against  the  claim  of  the  next  of  kin  (/). 

A  general  devise  and  bequest  to  executors,  having  equal  legacies 
of  stock,  for  mourning,  their  heirs,  executors,  &c,  on  the  especial 
trust  to  devote  all,  both  real  and  personal,  to  debts,  legacies,  and 
annuities,  is  a  resulting  trust  of  the  residue  for  the  heir  at  law  and 
next  of  kin  (ic). 

In  respect  to  that  class  of  cases  in  which  the  executor  shall  be 
entitled  to  the  residue,  although  he  be  a  legatee,  it  may  be  stated 
[354]  as  an  universal  rule,  that  wherever  the  legacy  is  consistent 
with  the  intent  that  the  executor  should  take  the  whole,  a  court  of 
equity  will  not  disturb  his  legal  right.  And  therefore,  where  a 
gift  to  an  executor  is  only  an  exception  out  of  another  legacy  ;  as  if 
a  library  be  bequeathed  to  A.,  out  of  which  the  executor  is  to  select 
ten  books  for  himself ;  it  shall  not  exclude  him  from  the  residue,  in- 
asmuch  as  it  was  necessary  to  make  an  express  exception  (v).  Nor 
where  a  legacy  is  given  by  a  codicil  to  one  of  two  executors  (w).  Nor 
where  the  executorship  is  limited  to  a  particular  period,  or  determin- 
able on  a  contingency,  and  the  legacy  to  the  executor,  at  the  end  of 
such  period,  or  on  such  contingency's  taking  place,  is  bequeathed 
over,  shall  it  defeat  his  claim  to  the  surplus  (x).   Nor  shall  a  gift  of 

(o)  Randall  v.  Bookey,  2  Vern.  425.  (s)  2  Fonbl.  130,  note  1.     7  Bro.  P. 

Southcot  v.  Watson,  3  Atk.  226.     Mar-  C.  511.     See  Attorney-General  v.  Hoo- 

tin  v.  Rebow,  1  Bro.  Ch.  Rep.  154.  ker,  2  P.  Wms.  338. 

(p)  2  Fonbl.  131.  note  (k).    Bayley.  {t)  Dawson  v.    Clark,  15  Yes.  jun. 

v.  Powell,  2  Vern.  361.     Wheeler  v.  409. 

Sheer,  Moseley,  288.  Andrew  v.  Clark,  («)  Southouse   v.  Bate,  2  Yes.  and 

2  Ves.    162.     Kennedy  v.  Stainsby,   1  Bea.  396. 

Ves.  jun.  66,  in  note.     Vid.  tam.  Attor-  (v)  1  P.  Wms.  550,  note  1.    Griffith 

ney-General  v.  Hooker,  2  P.  Wms.  337.  v.  Rogers,  Prec.  Chan.  231.     2  Eq.  Ca. 

{q)  Middleton  v.  Spicer,  1  Bro.  Ch.  Ab.  444,  pi.  58.  Newstead  v.  Johnston, 

Rep.  201.  2  Atk.  45.     Southcot  v.  Watson,  3  Atk. 

(r)    Lady    Granville    v.    Duchess  of  229.     Vid.  also  7  Bro.  P.  C.  511. 

Beaufort,  1  P.  Wins.  115.550,  note  1.  {w)  Pratt  v.  Sladden,  14  Yes.  jun. 

Fonbl.  130,  note  1.     Lake  v.  Lake,  193. 

Ambl.  126.    2  Eq.  Ca.  Abr.  444.    Mar-  (x)  2  Fonbl.  131.  note  (k).    Hoskm# 

tin  v.  Rebow,  1  Bro.  Ch.  Rep.  154.  v   Hpskiae,  Free  in  Chan.  263. 


CHAP.   IV.]         THE  RESIDUE  UNDISPOSED  OF. 


354 


only  a  limited  interest  for  the  life  of  the  executor  have  that  effect  (y), 
For  in  these  cases  the  legacy  is  considered  as  an  exception  out  of  the 
general  gift  to  the  devisee  over,  and  therefore  not  such  a  legacy  as 
shall  exclude  the  executor  from  the  residue,  since  it  does  not  involve 
the  absurdity  of  gi  vingexpressly  a  part  where  the  whole  was  intended 
to  be  given  (z).  But  the  limited  executor  has  an  interest  in  the  resi- 
due only  while  his  executorship  continues,  on  the  determination  of 
which  it  devolves  on  the  general  executor  (a). 

If  the  executor  be  an  infant,  a  legacy  bequeathed  to  him  shall  not, 
it  seems,  exclude  him  from  the  residue,  because  his  infancy  renders 
him  unfit  to  be  a  trustee,  and,  therefore,  he  shall  be  intended  to  have 
been  named  for  his  ctfvn  benefit  (6). 

[355]  That  parol  evidence  may  be  received  for  the  purpose  of 
rebutting  a  resulting  trust,  is  sufficiently  established  by  a  series  of 
cases  ;  but  it  is  admitted  with  great  caution  (c),  and  although  not  re- 
stricted to  what  passed  at  the  time  of  making  the  will  (d),  yet  must 
point  to  the  testator's  intention  at  that  time  only  :  evidence  of  his 
subsequent  intention  will  have  no  effect  (e).  Nor  shall  parol  evi- 
dence for  such  purpose  be  admitted,  where  the  executor  is  declared 
by  the  will  to  be  a  trustee  ;  or  where  the  bequest  to  an  executor 
is  expressed  in  terms  equivalent  to  such  a  declaration,  as  where  the 
legacy  is  given  to  him  for  his  care  and  trouble  in  fulfilling  the  will(,/). 

An  executor  taking  a  contingent  interest  under  the  will,  was  held 
not  precluded  from  giving  evidence  of  the  testator's  intention,  that 
he  should  have  the  residue  beneficially,  nothing  upon  the  face  of 
the  will  indicating  that  he  was  to  take  the  office  merely  (g).  (1) 

(»/)  2  Fonbl.  131.   note  (k).     Lady  Feast,  2  Ves.  28.     Nourse  v.  Finch,  1 

Granville  v.  Duchess  of  Beaufort,  1  P.  Ves.  jun.  358. 

Wms.  114.     Jones  v.  Westcomb,  Prec.  (d)  Sed  vid.  Duke  of  Rutland  v.  Du- 

Chan.  316.     Nourse  v.  Finch,  1  Ves.  chess    of    Rutland,    2    P.  Wms.    209. 

jun.  356.  Nourse  v.  Finch,  1  Ves.  jun.  359. 

(z)  1  P.  Wms.  116.  note  1.  (e)  Lake  v.  Lake,  1  Wils.313.  Ambl. 

(a)  Vid  Prec.  in  Chan.  264.  126.    S.    C.     Clennel    v.  Lewthwaite. 

\b)  Lamplugh    v.  Lamplugh,    1    P.  Decreed  per  M.  R.  2  Ves.  jun.  465. 

Wms.  112.   See  also  Blinkhorn  v.  Feast,  Decree  affirmed  by  Lord  Chancellor, 

2  Ves.  30.  ibid.  644.     Walton  v.  Walton,  14  Ves. 

(c)  2  Fonbl.  135,  note  1.     Rochfield  jun.  318. 

v.  Careless,  2  P.  Wms.  158.  160.    Duke  (/)  Rochfield  v.  Careless,  2  P.  Wms. 

of  Rutland  v.  Duchess  of  Rutland,  210.  158. 

Nichols  v.  Osborn,  420.     Blinkhorn  v.  (g)  Lynn  v.  Beaver,  1  Turn.  63. 


(1)  By  the  11th  section  of  the  Act  of  7th  April,  1807,  (Purd.  Dig1.  802.  4  5m. 
Laws,  402,)  it  is  provided,  that  "  where  any  person  or  persons  shall  hereafter 
die,  having  made  and  executed  any  testament  and  last  will,  and  shall  not  therein 
have  disposed  of  the  residue  of  his  or  her  personal  estate,  the  executor  or  execu- 
tors therein  named  shall  distribute  such  undisposed  of  residue  to  and  among-  the 
next  of  kin,  agreeably  to  the  intestate  laws  of  this  commonwealth;  but  nothing  in 
this  section  contained  shall  be  construed  to  affirm  or  deny  the  right  of  any  exe- 
cutor or  executors  to  such  undisposed  of  residue  prior  to  the  passing  of  this  act." 
There  had  been  previous  to  the  passage  of  this  act  much  diversity  of  opinion  upon 


355  THE  RESIDUE  UNDISPOSED  OF.  [BOOK   III. 

the  question,  whether  in  Pennsylvania  the  executor  was  a  trustee  for  the  next  of 
kin  of  undisposed  of  personal  property,  or  took  it  beneficially.  The  uncontra- 
dicted dictum  of  Chief  Justice  M'Kean  in  Boudinot  v.  Bradford  (2  Dall.  268.), 
the  decision  of  President  Wilson  in  Davis  v.  Davis's  Ex.  (C.  Pleas  of  Deluware 
county,  April  1806,  cited  3  Binn.  566.),  and  the  dissent  of  Judge  Yeates  in  Wil- 
son v.  Wilson  (3  Binn.  562.),  show  the  then  prevailing  impression  that  the  law 
was  the  same  as  the  English  law.  The  case  of  Grosser  v.  Eckart  (1  Binn.  575.) 
was  decided  upon  the  intention  of  the  testator,  as  exhibited  in  that  particular  will, 
"  taking-  for  granted,"  to  use  the  words  of  Chief  Justice  Tilghman,  (1  Binn.  584.) 
"that  our  law  was  the  same  [as  the  English  law]  when  that  will  was  made?"  but  in 
the  case  of  Wilson  v.  Wilson  (3  Binn.  566)  the  Supreme  Court  (two  judges  against 
one)  decided,  that  an  executor  was  and  had  always  been  trustee  for  the  next  of  kin 
in  all  cases  in  Pennsylvania  ;  and  that  opinion  was  repeated  in  a  subsequent  case 
between  the  same  parties  (  Wilson  v.  Wilson,  9  Serg.  &  Rawle,  428).  Where  how- 
ever a  testator  devised  all  his  estate,  both  real  and  personal,  to  his  executors  and 
their  heirs,  gave  directions  as  to  the  manner  of  paying  his  debts,  and  then  gave 
the  residue,  if  any,  to  the  discretion  of  his  executors,  to  distribute  in  such  manner 
as  they  may  think  proper,  it  seems  that  the  executors  take  beneficially.  Case  of 
Neave's  Estate,  9  Serg.  &  Rawle,  186.  In  Massachusetts,  since  the  statute  of 
1783,  cap.  32.  sect.  1  &  7,  the  executor  is  in  all  cases  trustee  for  the  next  of  kin 
of  the  undisposed  of  residue.  Hays,  Ex.  v.  Jackson,  6  Mass.  Rep.  153.  So  also 
in  North  Carolina,  since  the  Act  of  1716.  Hill  v.  Hill,  2  Hayw.  Rep.  298.  See 
1  Penn.  Rep.  44. 


I  356  ] 


CHAP.  V. 

OP  THE  INCOMPETENCY  OF  AN  INFANT  EXECUTOR — OP  THE  ACT3 

OP  AN  EXECUTOR  DURANTE  MINORITATE OF  A  MARRIED  WOMAN 

EXECUTRIX OF  CO-EXECUTORS OP  EXECUTOR  OF  EXECUTOR 

OF  EXECUTOR  DE  SON  TORT. 

An  infant,  as  it  has  been  already  stated  (a),  is  now  by  the  stat. 
38  Geo.  3.  c.  87.  incapable  of  the  functions  of  an  executor,  till  he 
shall  have  attained  his  full  age  of  twenty-one  years.  Nor  before 
the  passing  of  this  statute  was  an  infant  competent  to  act,  till  he  had 
arrived  at  the  age  of  seventeen  [b)  ;  but  at  that  age  he  had  a  right 
to  assume  the  executorship.  He  had  authority  to  sell  the  testator's 
effects,  to  pay  and  receive  debts,  to  assent  to  and  pay  legacies,  and, 
generally,  to  discharge  the  duties  which  belong  to  the  representa- 
tives of  the  deceased  (c).  Yet,  if  an  infant  executor,  after  the  age 
of  seventeen,  and  before  the  age  of  twenty-one  years,  released  a  debt 
due  to  the  testator  without  actually  receiving  it,  such  a  release 
was  held  to  be  void  :  or  if  he  received  only  a  part  of  it,  it  was  void 
[357]  for  the  remainder  ;  for  otherwise  he  would  have  been  di- 
vested of  that  privilege  which  the  law  allows  to  all  infants,  of  re- 
scinding their  acts  when  they  are  manifestly  to  their  disadvantage. 
Nor  could  a  proceeding,  prejudicial  both  to  the  infant  and  to  the 
estate,  be  regarded  as  pursuant  to  his  office  (d).  On  the  same  prin- 
ciple the  assent  of  such  infant  executor  to  a  legacy  did  not  bind  him, 
unless  he  had  assets  for  the  payment  of  debts  (e).  Nor  had  he  a 
power  of  committing  any  other  act  which  might  involve  him  in 
the  consequences  of  a  devastavit  {/).  Nor,  in  a  late  case,  would 
the  Court  of  Chancery  direct  money  to  be  paid  to  an  infant  execu- 
tor, although  he  had  attained  the  age  of  seventeen  ;  but  referred  it 
to  a  master  to  inquire,  whether  there  were  any  debts  or  legacies, 
and  to  consider  of  a  maintenance  (g). 

(a)  Supr.  31,  101.  Ex.  217,  218.     Com.  Dig.  Admon.  E. 

(b)  Off.  Ex.  214.  1  Roll.  Abr.  730.  Russell's  case,  Moore,  146.  Knot  y. 
Sed  vid.  Clerke  v.  Hopkins,  Cro.  Eliz.  Barlow,  Cro.  Eliz.  671.  Kniveton  v, 
254.     Manning's    case,    3  Leon.    143.  Latham,  Cro.  Car.  490. 

Keilvv.    51.      Foxwist    v.  Tremaine,    2         (e)  Off.  Ex.  217,  225. 

Saund.  212.     1  Bl.  Com.  463.  (/)  Whitemore    v.  Weld,    1  Vera. 

(c)  3  Bac.  Abr.  8.   Off.  Ex.  215,217,     328. 

218.     Com.  Dig.  Admon.  E.  (g)  Campart  v.  Campart,  3  Bro  Ch. 

(rf)  3  Bac.  Abr.  8.     5  Co.  27.     Off.     Rep.  195. 


:357  MARRIED  WOMAN  EXECUTRIX.  [BOOK   III. 

But  these  distinctions  it  is  now  needless  to  discuss,  the  statute 
having  altogether  disqualified  an  infant  executor  from  exercising 
the  office  during  his  minority,  and  having  directed  administration 
with  the  will  annexed  to  be  granted  to  some  other  person  in  the  in- 
terim (A). 

If  A.  appoint  B.,  an  infant,  his  executor,  and  C.  executor  during 
the  minority  of  B. ,  C.  though  only  a  temporary  executor  seems, 
during  the  continuance  of  his  office,  to  be  invested  with  the  same 
[35S]  powers  as  belong  to  an  absolute  executor  ;  and  although  he 
be  named  in  the  will  administrator  only  for  the  benefit  of  the  in- 
fant (*); 

In  case  a  married  woman  be  executrix,  the  husband,  as  we  have 
before  seen  (&),  has  a  right  to  act  in  the  administration  with  or  with- 
out her  consent.  He  is  empowered  to  reduce  into  possession,  or 
to  dispose  of  the  property  by  way  of  gift,  sale,  surrender,  or  release; 
to  receive  and  pay  debts  ;  to  assent  to  and  pay  legacies  ;  and  to 
elect  for  his  wife  to  take  as  legatee  (/).  And  his  assets  are  charge- 
able in  equity  for  waste  committed  during  the  coverture  (m).  On 
the  contrary,  such  acts,  if  performed  by  her  without  his  permission, 
are  of  no  validity  (?i).  If  the  husband  be  abroad,  the  Court  of 
Chancery  will  restrain  the  executrix  from  getting  in  the  assets  of 
the  testator,  and  appoint  a  receiver  for  that  purpose,  with  power  to 
commence  suits  for  the  recovery  of  debts  due  to  the  estate  (o). 

And  this  doctrine  is  founded  on  the  principle,  that  as  he  is  person- 
ally responsible  for  such  acts,  the  law  makes  it  essential  to  their  va- 
lidity, that  they  should  be  performed  by  him,  or  at  least  with  his 
concurrence  :  otherwise  the  misconduct  of  the  wife  in  the  execu- 
torship might  be  extremely  prejudicial  to  the  husband  (p). 

Yet,  if  an  executrix  marry,  and  the  husband  eloine  the  goods, 
or  is  guilty  of  any  other  species  of  devastavit,  it  will  be  a  devasta- 
[359]  vit  also  by  the  wife,  and  they  will  be  both  answerable  ac- 
cordingly (q).  On  the  other  hand,  if  an  executrix  commit  a  devas- 
tavit, and  then  marry,  the  husband,  as  well  as  the  wife,  is  charge- 
able for  it  during  the  coverture  (r).  (1)  And  where  an  executrix 
marries,  and  her  husband  and  she  admit  assets  in  answer  to  a  bill 
filed  against  them  ;  the  assets  become  a  debt  of  the  husband  in  re- 

(h)  Vid.  supr.  31.  101.  Roll.  Abr.  924. 

(0    Off.  Ex.  215,  216.     Com.  Dig.  (o)  Tavlor  v.  Allen,  2  Atk.  213. 

Admon.  F.  (;;)   Off.  Ex.  207,  20S.  225.   1  Fonbl. 

(k)  Supr.  241.  84,  86,    5  Co.  27. 

(/)  Com.  Dig.  Admon.  D.     Off.  Ex.  (q)  Com.  Dig-.  Admon.  D.   Cro.  Car. 

207,208.     Wankford  v.  Wankford,   1  510.     Dyer,  210.  in  marg.     Bevnon  v. 

Salk.  306.  Collins,  2  Bro.  Ch.  Rep.  323.     Adair  v. 

(ra)  Adair  v.  Shaw,  1  Sell,  and  Lef.  Shaw,  1  Sch.  &  Lef.  257. 

243.  (r)  Com.  Dig-.    Baron  &  Feme,    N. 

(»)  3  Bac.  Abr.  9.    Keilw.  122.   Off.  King-  v.  Hilton,  Cro.  Car.  603.     Hev- 

Ex.  207,   208.     Vid.  Anders.   117.     1  ward's  case,  Moore,  761. 

(1)  Knox  v.  Picket,  4  Desaus.  Rep.  92. 


CHAP.  V.]  OF  CO-EXECUTORS.  359 

spect  of  such  admission,  and  may  be  proved  under  a  commission  of 
bankruptcy  issued  against  him  (s). 

If  the  testator  were  indebted  to  the  husband,  or,  which  is  the 
same  thing,  to  the  wife  before  marriage,  the  husband  may  retain. 

If  the  husband  were  indebted  to  the  testator,  the  making  of  the 
wife  executrix  is  equally  a  release  of  the  debt,  as  if  she  had  been 
the  debtor  ;  although  if  an  executrix  after  the  death  of  the  testator 
marry  such  debtor,  it  will  be  a  devastavit  (I). 

If  specific  legacies  are  left  to  a  husband  and  wife  jointly,  and  they- 
are  named  executors,  such  legacies  shall  exclude  them  from  the  resi- 
due, for  they  are  analogous  to  a  specific  legacy  to  a  sole  executor  (u). 

Co-executors,  we  may  remember,  are  regarded  in  law  as  an  indi- 
vidual person  (w)  ;  and,  by  consequence,  the  actsof  any  oneof  them, 
in  respect  to  the  administration  of  the  effects,  are  deemed  to  be  the 
acts  of  all  :  for  they  have  a  joint  and  entire  authority  over  the 
[360]  whole  property  (x).  Hence  a  release  of  a  debt  by  one  of 
several  executors  is  valid,  and  shall  bind  the  rest  (y).  (1)  So  a 
grant,  or  a  surrender  of  a  term  by  one  executor  shall  be  equally 
available  (z).  It  has  been  likewise  held,  that  if  one  confess  a  judg- 
ment, the  judgment  shall  be  against  all  (a).  But,  on  the  contrary, 
where  there  were  three  executors,  one  of  whom  gave  a  warrant  of 
attorney  to  confess  judgment  against  himself  and  his  co-executors, 
pursuant  to  which  a  judgment  was  entered  against  all  the  executors 
de  bonis  testatoris  for  the  debt,  and  against  the  executor  who  gave 
the  warrant  de  bonis  propriis  for  the  costs  ;  it  was  set  aside,  on  the 
ground  that  executors  may  plead  different  pleas,  (2)  and  that  which 
is  most  for  the  testator's  advantage  shall  be  received  (b).  Jf  one 
executor  grant,  or  release  his  interest  in  the  testator's  estate  to  the 
other,  nothing  shall  pass,  because  each  was  possessed  of  the  whole 
before  (c).  It  has  been  adjudged  also  that  if  one  of  two  executors 
appointed  by. the  obligee  deliver  the  bond  to  a  stranger  in  satisfac- 
tion of  a  debt  due  from  himself,  and  die  ;  although  the  debt  as  a 
chose  inaction  could  not  pass  by  the  assignment,  yet  by  this  deliv- 
ery the  party  had  such  an  interest  in  the  instrument,  that  he  might 
justify  the  detention  of  it  asagainst  the  surviving  executor  {d)\  but 

(s)  Matter  of  M'Williams,  1  Scho.  8c  wood,  2  Ves.  267. 

Lef.  173.  (z)  Ibid.  23  b.     ■ 

(0  Off.  Ex.  207.  («)  Ibid.  23  b.  in  note. 

(a)   1  P.  Wms.  550,   note  1,  ad  fin.  (b)  Elwell  v.  Quash,  Stra.  20.     Vid. 

Willis  v.  Brad\',  Barnard.  6-1.  Baldwin  v.  Church,  10  Mod.  323.    Hud- 

(w)  Vid.  su'pr.  37.  243.  son  v.  Hudson,  1  Atk. 460. • 

O)  3  Bac.  Abr.  30.     Off.  Ex.  95.     1  (c)   Godolph.   134.     3  Bac.  Abr.   31. 

Roll.   Abr.    924.     Com.   Dig-.-  Admon.  (d)  2   Roll.  Abr.  46.     Dyer,    23  b. 

B   12.  Kelsock  v.  Nicholson,  Cro.  Eliz.  478. 

(y)  Dyer,    23  b.      Jacomb    v.    liar-  S.  C.  496. 

(1)  3  Johns.  Rep.  70.  11  Johns.  Rep.  21.  Murray  v.  Blalcltford,  1  Wend. 
Rep.  583. 

(2)  Ileiskr  v.  Knipe,  1  P.  A.  Browne's  Rep.  319. 

31 


3G0  OF  CO-EXECUTORS.  [ROOK  III. 

the  law  of  this  case  seems  very  dubious,  inasmuch  as  the  debt, 
not  being  assignable,  could  not  pass  by  the  delivery  of  the  obliga- 
tion (e). 

[361]  One  executor  shall  not  be  allowed  to  retain  his  own  debt, 
in  prejudice  to  that  of  his  co-executor  in  equal  degree,  but  both 
shall  be  discharged  in  proportion  (f). 

An  assent  to  a  legacy  by  one  of  several  executors  is  sufficient  (g). 
And  if  there  be  a  devise  to  all  the  executors  generally,  one  of  them 
may  assent  for  his  part  (h). 

Co-executors,  as  well  as  a  sole  executor,  shall  be  excluded  from 
the  residue,  either  in  case  the  testator  shall  have  expressly  describ- 
ed them  as  mere  trustees,  or,  according  to  the  fair  construction  of  the 
will,  appears  to  have  so  considered  them  ;  or  in  case  he  has  made  an 
imperfect  disposition  of  the  residue,  as  where  he*has  inserted  a  resid- 
uary clause  without  proceeding  to  specify  the  residuary  legatee,  or 
where  he  hath  bequeathed  the  surplus  to  a  party,  who  died  before 
him  (e). 

If  a  legacy  be  given  to  one  executor,  expressly  for  his  care  and 
trouble,  and  no  legacy  be  given  to  his  co-executor,  they  shall  both 
be  barred  of  the  residue  (k).  For  one  being  a  trustee,  the  other 
must  be  a  trustee  also.  Yet  if  there  be  two  or  more  executors,  a  le- 
gacy to  one,  expressed  to  be  a  testimony  of  regard  and  immediately 
following  a  particular  trust  imposed  upon  him  by  the  will,  shall  not 
exclude  them  from  the  residue  (/),  nor  shall  even  a  simple  legacy 
to  one  of  them  have  that  effect ;  for  the  testator  may  have  intended 
a  preference  to  him  to  that  extent  (m).  So,  where  several  execu- 
[362] -tors  have  unequal  legacies,  whether  pecuniary,  or  specific, 
they  shall  nevertheless  be  entitled  to  the  surplus  (n).  (1)  But  where 
equal  pecuniary  legacies  are  given  to  co-executors,  a  trust  shall  re- 
sult for  the  next  of  kin  (o).  The  arguments  which  have  been  urg- 
ed in  opposition  to  this  rule,  and  to  shew  that  the  giving  of  equal 
pecuniary  legacies  to  several  executors,  is  not  absolutely  inconsist- 
ent with  an  intention  that  they  should  take  the  surplus,  are  that  such 
gift  would  secure  to  them  a  proportion  of  their  legacies  in  the  event 

(e)  3  Bac.  Abr.  in  note.  worth  v.  Brangwin,   Prec.  Chan.  323. 

(/)  2  Fonbl.407,  note  (1).     11  Vin.  4  Bro.  P.   C.  1.     Bishop  of  Clovne  v. 

Abr.  72.     3  Bl.  Com.  19.  Young-,  2  Ves.  91.     Wilson  v.  Ivat,  ib. 

(g)  Com.  Dig.  Admon.    C.  8.     Off.  166,167.    2  Fonbl.  133,  in  note.  Buffar 

Ex.  225.  v.  Bradford,  2  Atk.  220. 

(h)  1  Roll.  Abr.  618.  (n)  1  P.  Wms.   550,  note  1.     Bras- 

(t)   1  P.  Wms.    Petit  v.  Smith,  7.  &  bridge  v.  Woodroffe,  2  Atk.  69.    Bow- 

550,  note  1.     2  Fonbl.  133,  in  note.  Iter  v.  Hunter,  1  Bro.  Ch.  Rep.  328.     2 

(k)  2  Fonbl.  133,  in  note.     White  v.  Fonbl.  134,  in  note.  Blinkhorn  v.  Feast, 

Evans,  4  Ves.  jun.  21.  2  Ves.  27. 

(I)  Griffiths  v.  Hamilton,  12  Ves.  jun.  (o)   Petit  v.  Smith,  1  P.  Wms.  7.    Ca- 

298.  rey  v.  Goodinge,  3  Bro.  Ch.  Rep.  110. 

(»i)  1  P.  Wms.  550,  note  1.     Colcs- 


(1)  See  cmte,  page  352,  note  (1). 


CHA1\   V.]  OF  CO-EXECUTORS.  362 

of  a  deficiency  of  assets,  which  applies  equally  to  the  case  of  a  sole 
executor  ;  and  that  they  would  take  the  legacies  severally,  whereas 
the  residue  would  belong  to  them  jointly:  yet  the  rule  has  long 
prevailed  as  above  stated  (/?).  No  case,  however,  occurs  in  the 
books,  in  which  distinct  specific  legacies  of  equal  value  to  several 
executors  have  excluded  them  from  the  residue.  And  the  argu- 
ment, which  supports  the  rule  as  to  pecuniary,  by  no  means  applies 
with  equal  force  to  specific  legacies,  since  it  is  very  probable  that 
a  testator  may  wish  to  distribute  specific  quantities  of  stock,  or  par- 
ticular debts,  among  his  executors  in  some  particular  manner,  al- 
though equal  in  point  of  value,  and  consistently  with  an  intention 
that  they  should  take  the  surplus  {q). 

Nor  does  the  case  just  mentioned  (r),  of  specific  legacies  be- 
[363]  quealhedjointlytoahusbandand  wife,  who  are  named  execu- 
tors, bear  upon  the  point  ;  for,  as  it  was  before  observed,  it  is  sim- 
ilar to  that  of  a  specific  legacy  to  a  sole  executor  (s). 

Co-executors  taking  a  residue  in  that  character  take  as  joint  ten- 
ants ;  therefore,  if  one  of  them  die  before  severance,  his  share  shall 
survive  (/). 

The  power  of  an  executor  is  not  determined  by  the  death  of  his 
co-executor,  but  survives  to  him  ;  and,  therefore,  it  is  held  he  may 
assent  to  a  legacy  (w).  Whether  a  power  of  selling  land,  of  which 
I  shall  presently  speak,  given  to  co-executors,  is  in  strictness  of  law 
capable  of  being  exercised  by  the  survivor,  is  a  point  on  which  there 
are  opposite  authorities  (w).   (1).   Nor  is  it  now  material  to  resolve 

(p)  lP.Wras.  550,   note  1.  (m)  Com.  Dig-.  Admon.  B.  12.    Fian- 
ce Ibid.  2  Fonbl.  134,  in  note.  ders  v.  Ckrke,  3  Atk.  509.     S.  C.    1 
(r)  Supr.  359.  Ves.  9. 
(s)  1  P.  Wins.  550,    note  1.  ad  fin.  (?o)  Harg\  Co.  Litt.  113,  and  note  2. 

Willis  v.  Brady,  Barnard.  64.  1  Dy.  177.     Moore,  61.     Perk.  S.  550. 

(t)  Frewin  v.  Rolfe,  2  Bro.  Ch.  Rep.  Bro.  Abr.  Devise,  50.   Howell  v.  Barnes, 

220.     Griffiths    v.  Hamilton,    12  Ves.  Cro.  Car.  382.  Barnes's  case,  W.  Jones, 

jun.  298.  352. 


(1)  Where  the  authority  to  sell  is  given  to  executors  virtule  officii,  a  surviving 
executor  may  sell ;  and  an  acting  executor  has  the  same  power,  upon  the  renuncia- 
tion of  the  other  executors,  or  their  declining  to  act.  Lessee  of  Le  Bach  v.  Smith, 
3  Binn.  69.  Jackson  v.  Ferris,  15  Johns.  Hep.  348.  Nelson  y.Carrington,  4  Munf. 
332.  Digges'  Lessee  v.  Jarman,  4  Harr.  &  McHen.  485.  In  Pennsylvania,  by 
the  provisions  of  the  Act  of  12th  March,  1800,  (PurcL  Dig.  277,  4  Dall.  Laws, 
593,  3  Sm.  Laws,  433,)  express  power  is  given  to  a  surviving  executor  or  surviving 
executors,  an  acting  executor  or  acting  executors,  where  others  renounce  or  are 
dismissed  from  the  trust,  to  administrators  with  the  will  annexed,  and  administra- 
tors de  bonis  non,  to  execute  all  powers  and  authorities  to  sell  lands  contained  in 
any  last  will  and  testament,  as  fully  and  amply  as  if  all  the  executors  named 
had  joined  therein. 

Where  lands  arc  devised  to  be  sold,  but  the  testator  does  not  direct  his  execu- 
tors to  sell  them,  they  have  the  power  by  necessary  implication,  {Davoue  v.  Fan- 
ning, 2  Johns.  Cha.  Rep.  252.)  and  such  power  may  be  executed  by  a  surviv- 
ing executor.  Lloyd's  Lessee  v.  Tin/lot;  2  Dili.  Rep.  223.  See,  however,  Drayton 
v.  Drayton,  2  Desaus.  Rep.  250.  n.     Shoolbrcd  v.  Drayton,   2  Desaus.  Rep.  216. 


363  OE  AN  EXECUTOR  DE  SON  TORT.   [BOOK  III. 

it,  as  such  power,  although  extinct  at  law,  would  certainly  be  en- 
forced in  equity,  which  considers  the  application  directed  by  the 
testator  of  the  money  arising  from  the  sale  to  be  the  substantial  part 
of  the  devise,  and  the  persons  named  to  execute  the  power  of  selling 
to  be  mere  trustees,  in  conformity  to  the  rule  that  a  trust  shall  never 
fail  of  execution  for  want  of  a  trustee  ;  and  that  if  there  be  one 
wanting,  the  court  will  execute  the  office.  The  relief  is  administer- 
ed by  regarding  the  land,  in  whatever  person  vested,  as  bound  by 
[364]  the  trust,  and  compelling  the  heir,  or  other  person  having 
the  legal  estate,  to  perform  it  (x). 

As  a  mediate  or  remote  executor  has  the  same  interest  in  the  ef- 
fects of  the  original  testator  as  the  immediate  executor,  he  is  invest- 
ed with  the  same  authority  and  privileges,  and  is  bound  to  admin- 
ister such  effects  in  the  same  manner  (?/).  But  in  cases  of  special 
trust  confided  to  the  executor  without  the  ordinary  limits  of  his 
duty;  as  to  sell  land,  and  the  like  ;  if  it  be  not  performed  by  the 
original  executor,  some  books  allege  that  no  successive  executor,  as 
such,  shall  have  authority  for  that  purpose  (z).  On  the  other  hand, 
it  has  been  held  that  such  a  power  of  selling  given  to  an  executor  is 
transmissible  in  the  way  of  succession  in  infinitum,  till  executed  (#). 
But  this  point  is  of  no  more  importance  than  that  just  mentioned, 
and  for  the  same  reason. 

If  an  executor  who  has  not  proved,  assist  his  co-executor  who 
has,  in  writing  letters  to  collect  debts,  or  by  writing  directly  to  a 
debtor  of  the  testator  requiring  payment,  it  will  not  be  considered 
by  the  court  as  acting,  so  as  to  charge  him  (6). 

In  respect  to  an  executor  de  son  tort,  he  may  perform  a  variety 
of  acts,  which  shall  be  as  binding  as  those  of  a  rightful  executor  (c). 
As  against  creditors,  he  is  justified  in  paying  the  debts  of  the  de- 
ceased (d),  and,  indeed,  may  be  compelled  to  pay  them  so  far  as 
[365]  assets  come  to  his  hands  (e) ;  and  to  an  action  brought  against 
him  by  a  creditor,  he  may  plead  plene  administravit  {/). 

In  case  the  rightful  representative  shall  think  fit  to  pursue  his  le- 
gal remedy  against  such  an  intruder,  he  has  no  defence  ;  as,  if  it  be 
by  action  of  trover  for  the  goods  of  the  testator,  the  executor  de 
son  tort  cannot  plead  payment  of  debts  to  the  value,  or  that  he 
hath  given  the  goods  in  satisfaction  of  the  debts  ;  for  he  had  no 
right  to  interfere. 

Yet,  on  the  general  issue  pleaded,  he  may  give  in  evidence  such 
payments,  and  they  shall  be  deducted  from  the  damages  (g)  ;  or,  if 

(x)  Harg.  Co.  Litt.  113,  note  2.  (rf)  Off.  Ex.  181,  182. 

(y)  Com.  Dig.  Admon.  G.     Off.  Ex.         (e)  2  Bl.  Com.  507.     Dyer,  166  b. 
257,  258.     Shep.  Touchs.  464.  (/)  3  Bac.  Abr.  25.    5  Co.  30.    Off. 

(z)  Off.  Ex.  258,  259.  Ex.  181.     Whitehall  v.  Squire,  Carth. 

(a)  Harg.    Co.    Litt.    113.    note  2.  104.     Sid.  76. 

Keilw.  44.    2  Brovvnl.  194.    Dyer,  210.  (g)    Com.  Dig  Admon.  C.  3.  3  Bac. 

371  b.  Abr.  25.    Carth.  104.    Skin.  274.  pi.  2. 

(b)  On-  v.  Newton,  2  Cox's  Rep.  274.  Off.  Ex.  182.    Anon.  1  Ventr.  349, 350. 
(r)  3  Bac.  Abr.  25.     Off.  Ex.  180.  2  Bl.  Com.  508. 


CHAP.  V.]        OF  AN  EXECUTOR  DE  SON  TORT.  365 

they  amount  to  the  full  value,  the  plaintiff  shall  be  nonsuited  (h). 
But  it  may  be  doubted,  whether  in  such  action  the  defendant 
can  give  in  evidence  payment  of  debts  to  the  value  of  such  goods 
as  are  still  in  his  custody,  or  only  of  those  which  he  has  sold  (i). 
If  the  action  be  trespass  instead  of  trover,  payment  of  debts  to  the 
value  will  go  only  in  mitigation  of  damages  (k),  and  the  plaintiff 
will  be  entitled  to  a  verdict. 

The  ground  of  the  distinction  seems  to  be  this  :  in  trover,  his 
possession  is  admitted  to  have  been  lawful,  and  the  subsequent  dis- 
tribution negatives  the  conversion  ;  but -in  trespass,  the  unlawful 
[366]  taking  is  the  subject  matter  of  complaint,  to  which  the  dis- 
tribution is  not  an  answer. 

Nor  in  any  case  shall  such  payments  be  allowed  to  nonsuit  the 
plaintiff,  or  to  lessen  the  damages,  if  there  be  a  failure  of  assets, 
and  the  lawful  executor  would  by  these  means  be  divested  of  his 
right  of  preferring  one  creditor  to  another  of  equal  rank,  or  giving 
himself  the  same  preference  (/). 

Nor  shall  an  executor  de  son  tort  derive  any  advantage  from  the 
wrongful  character  which  he  has  assumed.  He  is  not  entitled  to 
bring  an  action  in  right  of  the  deceased  (w) ;  (1)  nor  is  he  empow- 
ered to  retain  in  satisfaction  of  his  own  debt :  for  such  a  privilege 
would  enable  him  to  profit  by  his  own  tortious  acts,  and  would 
tend  to  encourage  a  competition  of  creditors,  who  should  first  take 
possession  of  the  testator's  effects  without  any  legal  authority  (»)i 
There  is,  indeed,  one  exception  to  this  rule  ;  a  party  who  by 
stat.  43  Eliz.  c.  8.  (o)  becomes  an  executor  de  son  tort,  in  conse- 
quence of  a  gift  to  him  of  the  intestate's  effects  by  an  administrator, 
who  has  obtained  the  grant  fraudulently,  is  by  the  express  provision 
of  that  act  allowed  to  retain.  But  in  all  other  instances,  an  execu- 
[367]  tor  de  son  tort  is  excluded  from  this  advantage.  Nor  shall  he 
retain  for  his  own  debt,  even  against  a  creditor  of  inferior  degree  (p). 
Nor,  after  an  action  brought  against  him  by  a  creditor,  can  he  avail 
himself  of  a  delivery  over  of  the  effects  to  the  rightful  administrator, 
though  before  the  filing  of  the  plea  ;  nor  of  the  assent  of  the  ad- 
ministrator to  his  retainer  of  his  debt.  Nor  is  the  case  varied,  al- 
though in  point  of  fact  no  administration  were  granted  at  the  time 
of  the  commencement  of  such  suit,  and  the  defendant  without  delay 
relinquished  the  property  to  the  grantee  (q). 

(A)  L.  of  Ni.  Pri.  48.  (o)  See  Com.  Dig.  Admon.  C.3.  Off. 

(«')  Ibid.  Parker  v.  Kett,  12  Mod.  471.  Ex.  182,  183.  2  H.  Bl.  26.  in  note,  and 

\k)  L.  of  Ni.  Pri.  48.  91.     Ca.  B.  R.  vid.  supr.  39. 

441.  (p)  3  Bac.  Abr.  25.    5  Co.  30.     Ire- 

(/)  2  Bl.  Com.  508.     Off.  Ex.  182.  land  v.  Coulter,  Cro.  Eliz.  630.  1  Roll. 

(iv)  2  Bl.  Com.  507.    Bro.  Abr.  tit.  Abr.  922. 

Admon.  8.     11  Vin.  Abr.  222.     2  An-  (?)  Curtis  v.  Vernon,  3  Term.  Rep. 

ders.  39.  pi.  25.  587.    affirmed   in   Exch.  Chan.     2  H. 

(«)  2  Bl.  Com.  511.  5  Co.  30.  Moore,  Bl.  26. 
527. 


(1)  Lcc  v.  Wright,  1  Hawks'  Hep.  151. 


367  OF  AN  EXECUTOR  DE  SON  TORT.   [BOOK  111. 

If  the  executor  de  son  tort  deliver  the  effects  to  the  administra- 
tor before  such  action  brought,  that  is  a  sufficient  defence,  and  he 
may  give  it  in  evidence  on  the  plea  oiplene  administravit  (r). 

The  grant  of  administration  to  such  executor  shall  legalize  his 
previous  acts  {s).  (I)  Thus,  where  he  takes  possession  of  the  testa- 
tor's goods,  and  sells  them,  and  afterwards  is  appointed  administra- 
tor, such  subsequent  grant  shall  make  the  sale  effectual  (/).  So  if 
A.  be  ordered  by  B.  to  sell  the  effects  of  the  intestate,  and  B.  after- 
wards take  out  administration  ;  A.  to  an  action  brought  against  him 
by  a  creditor  may  plead  plene  administravit,  and  shall  be  discharg- 
[368]  ed  on  this  evidence  (w).  An  administration,  also,  commit- 
ted to  an  executor  de  son  tort,  and  although  committed  to  him  pen- 
dente  lite,  shall  warrant  his  retainer  of  his  own  debt,  on  the  same 
principle  of  necessity  on  which  such  right  of  executors  is  in  gene- 
ral founded,  namely,  to  avoid  the  inconvenience  and  absurdity 
of  a  party's  instituting  a  suit  against  himself  (.r).  So,  where  A. 
entitled  to  administration  was  opposed  in  the  ecclesiastical  court, 
and,  pendente  lite,  being  sued  as  executor  in  the  Court  of  King's 
Bench,  pleaded  a  retainer  for  a  debt  due  to  himself,  to  which  the 
plaintiff  replied,  that  the  defendant  was  executor  de  son  tort ;  the 
defendant  rejoined,  that  letters  of  administration  had  been  granted 
to  him  puis  darrein  continuance;  on  demurrer  the  plea  was  al- 
lowed, and  judgment  given  for  the  defendant  (y).  But  if  A.  dis- 
pose of  an  intestate's  goods  to  B.  for  the  payment  of  the  funeral, 
and  afterwards  take  administration,  it  has  been  held,  he  shall  not 
have  an  action  of  trover  against  B.  for  the  goods  (z). 

(r)  Anon.  1  Salk.  313.  Ventr.  180.     Sty.  337. 

(s)  Com.  Dig.  Admor.  C.  3.    Ken-        (y)  3  Bac.  Abr.  26.  in  note.  Vaughan 

rick  v.   Burgess,  Moore,  126.      Curtis  v.  Browne,  2  Stra.  1106.     Andr.  328. 

v.  Vernon,  3  Term.  Rep.  590.     2  H.  S.  C.   3  Term.  Rep.  588.     S.  C.   cited 

Bl.  25.  L.  of  Ni.  Pri.  143,  144. 

(t)    Moore,  126.  (z)    P.  per   two   just.     Holt,  C.  J. 

(u)  Whytmore  v.  Porter,  Cro.  Car.  contr.  Whitehall  v.  Squire,  Salk.  295. 

88.  S.  C.  Skin.  274.     Vid.  S.  C  Carth.  104. 

(x)  2  H.  11.  25.  argdo.     Com.  Dig.  and  supr.  244. 
Admor.    C.  3.     Pyne  v.  Woolland,   2 

(1)  See  ante  243,  note  (2). 


(     369     ) 


CHAP.  VI. 


OP    DISTRIBUTION. 


Sect.  I. 

Of  distribution  under  the  statute — and  herein  of  advance- 
ment. 

I  am  now  to  discuss  the  power  and  duty  of  an  administrator.  His 
office,  so  far  as  it  concerns  the  collecting  of  the  effects,  the  making 
of  an  inventory,  and  the  payment  of  debts,  is  altogether  the  same  as 
that  of  an  executor.  But  as  there  is  no  will  to  direct  the  subsequent 
disposition  of  the  property,  at  this  point  they  separate,  and  must 
pursue  different  courses. 

After  the  ordinary  was  divested  of  the  power  of  administering  an 
intestate's  effects,  and  compelled,  in  the  manner  above  mention- 
ed (a),  to  delegate  such  authority  to  the  relations  of  the  deceased, 
the  spiritual  court  attempted  to  enforce  a  distribution,  and  took 
bonds  of  the  administrator  for  that  purpose;  but  such  bonds  were 
prohibited  in  the  temporal  courts,  and  declared  to  be  void  in  point 
of  law,  on  the  ground,  that  by  the  grant  of  administration  the  ec- 
[370]  clesiastical  authority  was  executed,  and  ought  to  interpose 
no  farther  (b).  Thus  the  grantee  was  entitled  not  only  to  adminis- 
ter, but  also,  exclusively  to  enjoy  the  residue  of  the  intestate's  ef- 
fects (c).  For  the  purpose,  therefore,  of  aiding  the  imperfect  juris- 
diction of  the  ordinary,  and  of  preventing  any  single  hand  from 
sweeping  away  the  whole  surplus  {d),  the  stat.  22  &  23  Car.  2.  c. 
10.  commonly  called  the  statute  of  distributions  (e)  was  enacted.  (1) 

(a)  Supr.  80.  et  seq.  Bowers  v.  Little  wood,  594.     Carter  v. 

\b)    2  Bl.  Com.    515.     Edwards  v.  Crawley,  Uaym.  496.  4  Burn.  Eccl.  L. 

Freeman,  2  P.  Wms.  441.  Hughes  v.  342,  343. 

Hughes,  1  Lev.  233.  S.  C.  Cart.  125.  (e)  Made  perpetual  by  1  Jac.  2.  c.  17. 

(c)  Edwards  v.  Freeman,  2  P.  Wms.  s.  5.    Vid.  Rex  v.  Raines,  1  Ld.  Raym. 

448.  574. 

(e?)  Petit  v.   Smith,  1  P.   Wms.  8. 


(1)  In  Pennsylvania  provision  is  made  for  the  descent  of  the  real  and  dis- 
tribution of  the  personal  estate  of  persons  dying  intestate,  by  the  following  sec- 
tions of  the  act  of  19th  April,  179 1,  (Purd.  Dig.  373.  3  Dall.  Laws,  521.  3  Sm. 
Laws,  135.)  viz  : 


370  OF  DISTRIBUTION  [BOOK  III. 

Sect.  III.  The  remaining  part  of  any  lands,  tenements  and  hereditaments, 
and  personal  estate  of  any  person  deceased,  not  sold  or  disposed  of  by  will,  nor 
otherwise  limited  by  marriage  settlement,  shall  be  divided  and  be  enjoyed  in  man- 
ner following,  to  wit  :  If  the  intestate  leaves  a  widow  and  lawful  issue,  the  widow 
shall  be  entitled  to  one  third  part  of  the  real  estate,  for  and  during  her  natural 
life,  and  to  one  third  of  the  personal  estate  absolutely  ;  and  the  remaining  two 
thirds  of  the  said  estate  real  and  personal,  shall  immediately  descend  and  be  dis- 
tributed to  the  lawful  children  of  the  intestate,  such  children  always  to  inherit 
and  enjoy,  as  tenants  in  common,  in  equal  parts  :  And  in  case  the  person  dying 
intestate  shall  leave  several  persons  lawful  issue  in  the  direct  line  of  lineal  descent, 
and  all  of  equal  degree  of  consanguinity  to  the  person  so  dying  intestate,  the 
said  two  thirds  of  such  estate  shall  descend  and  be  distributed  to  the  said  several 
persons  as  tenants  in  common,  in  equal  parts,  however  remote  from  the  intestate 
the  common  degree  of  consanguinity  may  be,  in  the  same  manner  as  if  they  were 
all  daughters  of  the  person  so  dying  intestate:  And  in  case  the  intestate  shall  leave 
lawful  issue  of  different  degTees  of  consanguinity  to  him  or  her,  the  said  two 
thirds  of  such  estate  shall  descend,  and  the  personal  estate  be  distributed,  to  the 
lawful  child  or  children  of  the  intestate,  if  either  or  any  of  them  be  then  living, 
and  to  the  lawful  issue  of  such  of  the  children  as  shall  be  then  dead,  leaving 
lawful  issue,  as  tenants  in  common  ;  such  issue  always  to  inherit,  if  one  person, 
solely,  and  if  several  persons,  as  tenants  in  common,  in  equal  parts,  such  share  only 
as  would  have  descended  to  his  or  their  parent,  if  such  parent  had  been  then  liv- 
ing ;  and  each  of  the  lawful  children  of  the  intestate  always  to  inherit  and  re- 
ceive such  share  as  would  have  descended  or  been  distributed  to  him  or  her,  if  all 
the  children  of  the  intestate,  who  shall  be  then  dead,  leaving  lawful  issue,  had 
been  living  at  the  death  of  the  intestate  :  And  if  there  be  no  child  of  the  intes- 
tate living  at  the  death  of  the  intestate,  and  only  a  grandchild  or  grandchildren, 
and  the  lawful  issue  of  a  grandchild  or  grandchildren,  who  shall  be  then  dead, 
leaving  lawful  issue,  then  the  real  estate  shall  descend,  and  the  personal  estate 
be  distributed  to  such  grandchild  or  grandchildren  of  the  intestate,  and  to  the 
lawful  issue  of  such  of  the  grandchildren  of  the  intestate,  as  shall  then  be  dead, 
leaving  issue,  as  tenants  in  common  ;  such  issue  always  to  inherit,  if  one  person, 
solely,  and  if  several  persons,  as  tenants  in  common,  in  equal  parts,  such  share 
only  as  would  have  descended  to  his,  her,  or  their  parent,  if  such  parent  had  been 
then  living  :  and  each  of  the  grandchildren  of  the  person  so  dying  intestate,  who 
shall  be  living  at  the  time  of  the  death  of  the  intestate,  always  to  inherit  and  re- 
ceive such  share  as  would  have  descended  or  been  distributed  to  him  or  her,  if 
all  the  grandchildren  of  the  intestate,  who  shall  be  then  dead,  leaving  lawful 
issue,  had  been  living  at  the  time  of  the  death  of  the  intestate  ;  And  the  same 
law  of  inheritance,  descent  and  distribution,  shall  be  observed,  in  case  of  the  death 
of  the  grandchildren,  and  other  descendants,  to  the  remotest  degree. 

Sect.  IV.  In  case  the  intestate  leaves  no  widow,  the  whole  real  and  personal 
estate  shall  descend  and  be  divided  as  is  directed  in  the  preceding  section  with 
respect  to  the  estate  not  disposed  of  in  favour  of  the  widow  :  and  if  the  intestate 
shall  leave  a  widow  and  no  lawful  issue,  the  said  widow  shall  have  one  moiety  or 
half  part  of  the  real  estate,  including  the  mansion  house,  during  her  natural  life, 
except  in  cases  where  in  the  judgment  of  the  orphan's  court,  the  estate  cannot 
with  propriety  be  divided  ;  and  in  that  case  she  shall  have  and  receive  the  rents 
and  profits  of  one  moiety  of  the  real  estate  during  her  natural  life,  and  one  moie- 
ty of  the  personal  estate  absolutely  ;  the  remaining  moiety  to  descend  and  be 
disposed  of,  as  is  provided  with  respect  to  the  whole  estate,  in  case  the  intestate 
leaves  no  widow  ;  and  the  real  estate  so  as  aforesaid  to  be  enjoyed  by  the  widow 
during  her  natural  life,  shall  descend  and  be  disposed  of  as  is  by  this  act  provided 
with  respect  to  the  whole  estate,  in  case  the  intestate  leaves  no  widow. 

Sect.  V.  In  case  any  person  so  as  aforesaid  seized  or  possessed  shall  die,  leav- 
ing neither  widow  nor  lawful  issue,  but  leaving  a  father,  the  whole  of  the  said 
real  estate  shall  be  enjoyed  by  the  father  of  the  intestate,  for  and  during  the 
natural  life  of  such  father,  and  the  personal  estate  of  the  said  intestate  shall  pass 
and  be  vested  in  the  said  father  absolutely  ;  unless  the  said  real  and  personal  es- 
tate, or  either  of  them,  came  to  the  person  so  dying  seized  or  possessed,  from  the 


CHAP.  VI. J  OF  DISTRIBUTION.  370 

part  of  his  or  her  mother,  in  which  case  the  said  estate,  or  such  part  thereof  as 
shall  have  come  from  the  part  of  his  or  her  mother,  shall  descend,  pass  and  be 
enjoyed  or  possessed,  as  if  such  person  so  dying  seized  or  possessed  had  survived 
his  or  her  father.  ' 

Sect.  VI.  If  any  person  so  dying  seized  shall  leave  neither  widow  nor  lawful 
issue,  but  shall  leave  a  father,  and  brothers  and  sisters,  the  said  real  estate  shall 
descend  to  and  be  enjoyed  by  the  brothers  and  sisters  of  the  intestate,  after  the 
Acease  of  the  father,  as  tenants  in  common,  in  equal  parts  j  and  if  any  of  the 
brothers  or  sisters  of  the  intestate  shall  be  then  dead,  leaving  lawful  issue,  then 
it  shall  descend  to  and  be  enjoyed  by  the  surviving  brothers  and  sisters,  and  the  law- 
ful issue  of  such  brothers  or  sisters  as  shall  then  be  dead,  leaving  lawful  issue, 
such  issue  always  to  inherit,  if  one  person,  solely,  if  several  persons,  as  tenants  in 


._  person  so  dying 

death  of  the  intestate,  always  to  inherit  and  enjoy  such  share  as  would  have 
descended  and  been  distributed  to  him  or  her,  if  all  the  brothers  and  sisters  leav- 
ing lawful  issue  had  been  living  at  the  time  of  the  death  of  the  intestate  ;  but  if 
the  intestate  shall  leave  no  brothers  or  sisters,  nor  their  representatives,  then  the 
estate  shall  go  to  the  father  in  fee  simple,  unless  where  the  estate  has  descended 
from  the  part  of  the  mother  as  aforesaid. 

Sect.  VII.  In  case  any  person  so  as  aforesaid  seized  or  possessed  shall  die, 
leaving  no  widow  nor  lawful  issue,  nor  father,  but  leaving  a  mother,  the  whole 
of  the  real  estate  shall  be  enjoyed  by  the  mother  of  the  intestate,  for  and  during 
the  natural  life  of  such  mother  ;  and  the  personal  estate  of  the  said  intestate 
shall  pass  and  be  vested  in  the  said  mother  absolutely,  unless  the  said  real  and 
personal  estates,  or  either  of  them,  came  to  the  person  so  dying  seized  or  possess- 
ed from  the  part  of  his  or  her  father,  in  which  case  the  said  estate,  or  such  part 
thereof  as  shall  have  come  from  the  part  of  his  or  her  father,  shall  descend,  pass 
and  be  enjoyed  or  possessed,  as  if  such  person  so  dying  seized  or  possessed  had 
survived  his  or  her  mother. 

Sect.  VIII.  If  the  person  so  dying  seized  shall  leave  neither  widow  nor  lawful 
issue,  but  shall  leave  a  mother,  and"~brothers  and  sisters,  the  said  real  estate  shall 
descend  to  and  be  enjoyed  by  the  brothers  and  sisters  of  the  intestate,  or  their 
representatives,  after  the  decease  of  the  mother,  as  tenants  in  common,  in  equal 
parts ;  and  if  any  of  the  brothers  or  sisters  of  the  intestate  shall  be  then  dead, 
leaving  lawful  issue,  then  it  shall  descend  to  and  be  enjoyed  by  the  surviving 
brothers  and  sisters,  and  the  lawful  issue  of  such  brothers  or  sisters  as  shall  be 
then  dead,  leaving  lawful  issue,  such  issue  always  to  inherit,  if  one  person,  solely, 
if  several  persons,  as  tenants  in  common,  in  equal  parts,  such  share  only  as  would 
have  descended  to  his,  her  or  their  parent,  had  such  parent  been  then  living  ; 
and  each  of  the  brothers  and  sisters  of  the  person  so  dying  intestate,  who  shall 
be  living  at  the  time  of  the  death  of  the  intestate,  always  to  inherit  and  enjoy 
such  share  as  would  have  descended  and  been  distributed  to  him  or  her,  if  all  the 
brothers  and  sisters  leaving  lawful  issue  had  been  living  at  the  time  of  the  death 
of  the  intestate. 

Sect.  IX.  In  case  any  child  shall  have  any  estate  by  settlement  of  the  intestate, 
or  shall  be  advanced  by  the  intestate,  in  his  or  her  lifetime,  by  portion  or  portions, 
equal  to  the  share  which  shall  be  divided  and  allotted  to  the  other  children,  and 
other  descendants,  whether  the  same  be  by  lands  or  personal  estate,  such  person 
shall  have  no  share  of  the  estate  of  which  the  said  person  died  seized  or  pos- 
sessed :  and  in  case  anv  child  shall  have  any  estate  by  settlement  from  the  intes- 
tate, or  shall  have  been  advanced  by  the  said  intestate  in  his  or  her  lifetime, 
whether  the  said  portion  or  advancement  be  in  real  or  personal  property,  but  not 
equal  to  the  share  which  will  be  due  to  the  other  children  or  descendants,  then 
so  much  of  the  surplusage  of  the  said  estate  of  the  intestate  to  be  distributed  to 
such  child  or  children,  as  shall  make  the  estate  of  all  the  said  children  or  descend- 
ants, to  be  equal;  excepting,  nevertheless,  that  where  the  issue  to  take,  shall 
not  be  of  equal  degree  to  the  person  dying  seized  or  possessed,  the  several  de- 
scendants taking  by  representation  to  inherit  and  enjoy,  the  one  person  solely, 

32 


370  OF   DISTRIBUTION.  [liUOK  III. 

That  statute,  after  empowering  the  ordinary,  on  the  granting  of  ad- 
ministration, to  take  a  bond  of  the  administrator,  with  two  or  more 
.sureties,  conditioned  as  I  have  already  stated,  further  authorizes 
him  to  proceed,  and  call  such  administrator  to  account  touching 
the  goods  of  the  intestate  ;  and  on  hearing,  and  on  due  considera- 
tion thereof,  to  make  equal  and  just  distribution  of  what  remains 
clear  after  all  debts,  funeral,  and  just  expences  of  every  sort  first 
allowed  and  deducted,  among  the  wife  and  children,  or  children's 
children,  if  any  such  he,  or  otherwise  to  the  next  of  kindred  to  the 
deceased,  in  equal  degree,  or  legally  representing  their  stocks,  pro 
suo  citiquejure,  accordinglo  the  laws  in  such  cases,  and  the  rules 
and  limitation  thereafter  set  down  ;  and  the  same  distributions  to 
decree  and  settle,  and  to  compel  such  administrator  to  observe  and 
pny  the#  same  by  the  due  course  of  the  ecclesiastical  laws.  The 
statute  then  proceeds  to  prescribe  the  distribution  of  such  surplusage 
[371]  in  manner  following  ;  that  is  to  say,  one  third  part  thereof 
to  the  wife  of  the  intestate,  and  all  the  residue  by  equal  portions 
among  his  children,  and  such  persons  as  legally  represent  such 
children,  in  case  any  of  them  be  then  dead,  other  than  such 
child  or  children,  not  being  heir  at  law,  as  shall  have  any  es- 
tate by  the  settlement  from  the  intestate,  or  shall  be  advanced  by 
him  in  his  lifetime  by  portion,  equal  to  the  share  which  shall  by 
such  distribution  be  allotted  to  the  other  children,  to  whom  such 
distribution  is  to  be  made  ;  and  in  case  any  child,  other  than  the 
heir  at  law,  who  shall  have  any  estate  by  settlement  from  the  intes- 

and  several  persons,  us  tenants  in  common,  ill  equal  parts,  such  share  only  as 
would  have  descended  or  be:  n  distributed  to  his,  her  or  their  parent  or  ancestor, 
if  such  parent  or  ancestor  had  been  then  living-. 

Sect.  X.  All  posthumous  children  shall  in  all  cases  whatsoever,  inherit  in  like 
maimer,  as  if  they  were  born  in  the  lifetime  of  their  respective  fathers. 

Sect.  XI.  'Where  any  person  shall  die  seized  as  aforesaid,  leaving  no  children, 
or  lawful  issue,  father  or  mother,  brothers  or  sisters  or  their  lawful  issue,  of  the 
whole  blood,  then  brothers  and  sisters  of  the  half  blood,  and  their  lawful  issue, 
shall  inherit  the  same  as  aforesaid,  in  preference  to  the  more  remote  kindred  of 
the  whole  blood,  unless  where  such  inheritance  came  to  the  said  person  so  seized 
by  descent,  devise  or  g-ift,  of  some  one  of  his  or  her  ancestors,  in  which  case 
all  those,  who  are  not  of  the, blood  of  such  ancestor,  shall  be  excluded  from  such 
inheritance. 

Sect.  XII-  The  real  and  personal  estate  of  any  person  dying- intestate,  in  case 
such  person  leaves  neither  widow  nor  lineal  descendant,  nor  father  or  mother,  or 
brothers  or  sisters  of  the  whole  or  half  blood,  or  lawful  issue  of  any  brother  or 
sister  of  the  whole  or  half  blood,  shall  descend  to  and  be  divided  among-  the  next 
of  kin  of  equal  degree  ;  and  if  any  such  kindred  shall  be  then  dead,  leaving  law- 
ful issue,  then  it  shall  descend  to  and  be  enjoyed  by  such  surviving-  kindred,  and 
'the  lawful  issue  of  such  kindred  as  may  be  then  dead,  leaving-  issue,  as  tenants  in 
common,  such  issue  always  to  inherit,  if  one  person,  solely,  and  if  several  persons 
as  tenants  in  commmon,  in  equal  parts,  such  share  only  as  would  have  descended 
to  his,  her  or  their  parent,  if  such  parent  had  been  then  living- ;  and  each  of  the 
kindred  i:i  equal  degree  to  the  person  so  dying  intestate,  who  shall  be  living-  at  the 
time  of  the  death  of  the  intestate,  always  to  inherit  and  receive  such  share  as 
would  have  descended  to  him  or  her,  if  all  such  kindred  leaving  lawful  issue  had 
:    living1  at  the  time  of  the  death  of  the  intestate. 


CHAP.   VI.]  OF  DISTRIBUTION.  371 

tate,  or  shall  be  advanced  by  him  in  his  lifetime  by  portion,  not 
equal  to  the  share  which  will  be  due  to  the  other  children  by  the 
distribution,  then  so  much  of  the  surplusage  shall  be  distributed  to 
such  child  as  shall  have  any  land  by  settlement  from  the  intestate, 
or  was  advanced  in  the  lifetime  of  the  intestate,  as  shall  make  the 
estate  of  all  the  children  to  be  equal,  as  near  as  can  be  estimated  : 
butlhe  heir  at  law,  notwithstanding  any  land  that  he  shall  have  by 
descent  or  otherwise  from  the  intestate,  is  to  have  an  equal  part  in 
the  distribution  with  the  rest  of  the  children,  without  any  consider- 
ation of  the  value  of  such  land. 

It  then  directs,  that  in  case  there  be  no  children,  nor  any  legal 
representatives  of  them,  one  moiety  of  the  estate  shall  be  allotted 
to  the  wife  of  the  intestate,  and  the  residue  of  the  same  shall  be  distrib- 
uted equally  among  every  of  his  next  of  kindred  who  are  in  equal 
degree,  and  those  who  legally  represent  them. 

[372]  It  also  provides,  that  no  representations  shall  be  admitted 
among  collaterals  after  brothers'  and  sisters'  children  ;  and  in  case 
there  be  no  wife,  then  that  all  the  estate  shall  be  distributed  equally 
among  the  children  ;  and  in  case  there  be  no  child,  then  among 
the  next  in  kindred  to  the  intestate  in  equal  degree,  and  their  legal 
representatives  as  aforesaid,  and  in  no  other  manner. 

And  it  further  directs,  for  the  benefit  of  creditors,  that  no  such 
distribution  of  the  goods  of  the  intestate  shall  be  made,  till  after 
the  expiration  of  one  year  from  his  death  ;  and  that  every  one  to 
whom  any  distribution  and  share  shall  be  allotted,  shall  give  bond, 
with  sufficient  sureties,  in  the  spiritual  court,  that  if  any  debt, 
truly  owing  by  the  intestate,  shall  afterwards  be  sued  for  and  re- 
covered, or  otherwise  duly  made  to-appear,  that  then,  and  in  evcrv 
such  case,  he  shall  refund,  and  pay  back  to  the  administrator,  his 
rateable  part  of  that  debt  and  of  the  costs  of  suit,  and  charges  of 
the  administrator  by  reason  of  such  debt,  out  of  the  pnrt  and  share 
so  allotted  to  him,  thereby  to  enable  the  administrator  to  pav  and 
satisfy  the  debt  so  discovered  after  the  distribution  made. 

The  statute  also  contains  a  proviso,  that  in  all  cases  where  the  or- 
dinary hath  used  heretofore  to  grant  administration  cum  testamen- 
io  annc.ro,  he  shall  continue  so  to  do  :  and  the  will  of  the  deceas- 
ed in  such  testament  expressed,  shall  be  performed  and  observed 
in  such  manner  as  before  the  passing  of  the  act. 

[373]  It  also  express!}'  excepts  and  reserves  the  customs  of  the 
city  of  London,  of  the  province  of  York,  and  of  other  places  hav- 
ing peculiar  customs  of  distributing  an  intestate's  effects. 

Doubts  having  arisen  whether  the  husband's  right  to  administra- 
tion to  his  wife  was  not  superseded  by  force  of  this  statute,  and 
whether  he  was  not  thereby  hound  to  distribute  her  personal  estate 
among  her  next  of  kin  (/)  ;  by  the  stat.  29  Car.  2.  c.  3.  .v.  23.  it 
is  provided,  that  the  above  act  shall  not  extend  to  estates  of  ferne 

(/)   Vid.  supr.  8o. 


373  or  distribution.  [book  hi. 

coverts  who  die  intestate,  but  that  the  husband  may  demand  and 
have  administration  of  their  rights,  credits,  and  other  personal 
estates,  and  recover  and  enjoy  the  same  as  before.  And  although  he 
die  without  having  taken  out  letters  of  administration  to  his  de- 
ceased wife,  her  next  of  kin,  on  taking  out  such  administration, 
will  be  a  trustee  for  the  husband's  personal  representative;  for  the 
operation  of  this  clause  in  the  statute  of  frauds  is  not  confined  to 
the  life  of  the  husband,  nor  to  the  circumstances  of  his  having  re- 
duced any  part  of  his  wife's  personal  estate  into  possession,  but 
provides  "that  no  part  of  her  estate  shall  be  distributable  among 
her  relations  after  her  death  (jr). 

On  the  construction  of  the  statute  of  distributions,  a  variety  of 
points  have  been  resolved. 

After  the  allotment  of  the  third  to  the  widow,  the  statute,  as 
we  have  seen,  directs  a  distribution  of  the  residue  by  equal  por- 
tions among  the  intestate's  children,  and  such  persons  as  legally 
represent  such  children,  in  case  any  of  them  be  dead,  that  is,  their 
lineal  descendants  to  the  remotest  degree  (A).- 

To  attain  a  clear  apprehension  of  the  subject,  three  sorts  of  cases 
[374]  may  be  supposed  :  First,  where  none  of  the  intestate's  chil- 
dren are  dead.  Secondly,  where  the  intestate's  children  are  all 
dead,  all  of  them  having  left  children.  Thirdly,  where  some  of 
the  intestate's  children  are  living,  and  some  dead,  and  such  as  are 
dead  have  each  of  them  left  children. 

On  the  first  hypothesis,  that  is  to  say,  where  none  of  the  intes- 
tate's children  are  dead;  it  is  sufficiently  obvious  that  after  the  wife 
has  had  her  third  allotted  to  her,  the  remaining  two-thirds  shall, 
pursuant  to  the  statute,  be  equally  divided  among  all  the  children 
of  the  intestate,  as  in  this  case  they  all  claim  in  their  own  right. 
A  brother  or  sister  of  the  half  blood  shall  be  equally  entitled  to  a 
share  with  one  of  the  whole  blood,  inasmuch  as  they  are  both 
equally  near  of  kin  to  the  intestate  (»).  Nor  shall  their  being  post- 
humous in  either  case  make  any  difference  (k).  For  a  child  en 
venire  sa  mere  at  the  time  of  the  father's  death,  being  a  person  in 
rerum  natura,  is  by  the  rules  of  the  common  and  civil  law,  to 
all  intents  and  purposes,  a  child,  as  much  as  if  born  in  the  father's 
lifetime,  and,  consequently,  is  entitled  under  the  statute  (/).  If  the 
intestate  leave  only  one  child,  such  case  is  not  to  be  considered  as 
omitted  by  the  statute  ;  therefore,  in  case  he  also  leave  a  wife,  she 

(g)  Squib  v.   Wyn,  1  P.  Wms.381.  ,  Watt,  2  Vera.  124.     Brown  v.  Farn- 

(A)  Vid.  4  Burn.  Eccl.  L.358.  Com.  dell,  Carth.  51. 

nig.  Admon.  H.    -Carter  v.  Crawley,  (k)   Burnet  v.  Man,   1  Ves.    156.     4 

Kavm.  500.    Pett's  Case,  1  P.  Wms.  27.  Burn.  E'ccl.  L.  344.     Ball  v.    Smith,  2 

(t)  3  Bac.   Abr.  74.    Com.  Dig.  Ad-  Freem.  230.     Edwards  v.  Freeman,    2 

mon.  H.  Smith  v.  Tracv,  1  Mod.  209.  P.  Wms.  446. 

S.    C.  2  Mod.  204.  2  Jones,  93.    S.  C.  (/)   Wallis  v.   Hodgson,  2  Atk.  117. 

1  Ventr.  316.  S.  C.   2  Lev.  173.  Show.  See  also  Thellusson  v.    Woodford,   11 

Pari.  Ca.   108.     Earl  of  Winchelsea  v.  Vcs.  jun.  139. 
Norcliffe,    1    Vern.    437.     Crooke    v. 


CHAT.    VI.]  OF  DISTRIBUTIOV.  374 

shall  have  only  a  third  part,  and  the  other  two-thirds  shall  go  to 
such  child  (rri).  So,  where  there  is  only  one  to  claim  under  the 
statute,  and  therefore,  literally  and  strictly  speaking;  there  can  be 
no  distribution,  yet  such  individual  shall  be  entitled  to  the  proper- 
ty {n). 

[3751  In  regard  to  the  second  supposition,  if  A.  have  three 
children  B.  C.  and  D.,and  they  all  die,  B.  leaving,  for  instance, 
two  children,  C.  three,  and  D.  four,  and  A.  afterwards  die  intes- 
tate ;  in  that  case  all  his  grand-children  shall  have  an  equal  share  ; 
for  as  his  children  are  all  dead,  their  children  shall  take  as  next  of 
kin.  Such  also  would  be  the  case  with  respect  to  the  great  grand- 
children of  the  intestate,  if  both  his  children  and  grand-children 
had  all  died  before  him(o). 

In  all  the  above  instances,  the  parties  are  said  to  take  per  capita, 
or,  in  other  words,  equal  shares  in  their  own  right  (p). 

Thirdly,  in  the  event  of  some  of  the  intestate's  children  being 
living,  and  some  dead,  and  such  as  are  dead  having  each  left  chil- 
dren ;  the  grand-children  take  per  stirpes,  that  is  to  say,  not  in  their 
own  right,  but  by  representation  (q).  Thus,  for  example,  if  A. 
have  three  sons,  B.  C.  and  D.,  and  B.  die,  leaving  four  children, 
and  C.  die,  leaving  two  :  on  A.'s  dying  intestate,  one  third  shall 
be  allotted  to  D.,  one  third  to  B.'s  four  children,  and  the  remain- 
ing third  to  C.'s  two  children  ;  for  these  grand-children  are  en- 
titled as  representing  their  respective  parents  (r). 

After  directing  the  residue  to  be  divided  among  the  children,  or 
[376]  their  representatives,  as  above  stated,  the  statute  provides, 
that  no  child  of  the  intestate,  except  his  heir  at  law,  on  whom  he 
settled  in  his  lifetime  any  estate  in  lands,  or  pecuniary  portion,  equal 
to  the  distributive  shares  of  the  other  children,  shall  participate 
with  them  of  the  surplus;  but  if  the  estate  so  given  him  by  way  of  ad- 
vancement be  not  equivalent  to  their  shares,  then  that  such  part  of 
the  surplus  as  will  make  it  so,  shall  be  allotted  to  him. 

The  statute  does  not  divest  the  child  of  any  property  which  has 
thus  been  given  to  him,  however  unequal  it  may  have  been,  or 
how  much  soever  it  may  exceed  the  residue:  he  may,  if  he  pleases, 
keep  it  all  :  if  he  be  not  contented,  but  would  have  more,  then  he 
must  bring  what  he  has  before  received,  as  the  law  expresses  it, 
into  hotchpot,  that  is,  into  the  general  mass  of  the  property  to  be 
so  divided. 

(m)  3  Bac.  Abr.  75.  Brown  v.  Farn-  595.     Davers  v.  Dewes,  3  P.  Wms.  50. 

dell,  Carth.  52.    Skin.  212.  pi.  5.  219.  Lloyd  v.  Tench,  2  Ves.  213.     Durant  v. 

pi.  3.  Prestwood,  1  Atk.  454.     Janson  v.  Bu- 

(t?)  4  Burn.  Eccl.  L.  343.  3  P.  Wms.  ry,  Bunb.  159.     2  Bl.  Com.  517. 

49,  note  (d).    Palmer  v.  Garrard,  Prec.  "  (p)  2  Bl.  Com.  218.  517. 

in  Ch.  21.  (q)  2  Bl.  Com  217. 

(o)  3  Bac.  Abr.  75.     1  Eq.  Ca.  Abr.  (r)  3  Bac.  Abr.  75.     1  Eq.   Ca.  Abr. 

249,  pi.  7.  Walsh  v.Walsh,  Prec.  Chan.  249.     Walsh  v.  Walsh,  Prec.  Chan.  51. 

54.     Bowers  v.  Littlcwood,  1  P.  Wms.  2  Bl.  Com,  517. 


376  OF  ADVANCEMENT.  [BOOK   111. 

This  is  the  clear  intention  of  the  act,  grounded  on  that  principle 
of  equality  (.?),  to  which  a  court  of  equity  is  ever  inclined. 

Therefore,  hcfore  a  younger  child  has  any  claim  to  a  share  of 
the  distribution,  he  must  first  bring  his  advancement  into  hotch- 
pot. 

The  provision  in  the  statute  applies  only  to  the  case  of  actual 
intestacy;  and  where  there  is  an  executor,  and  consequently  a  com- 
plete will,  though  the  executor  may  be  declared  a  trustee  for  the 
next  of  kin,  they  take  as  if  the  residue  had  been  actually  given  to 
them.  Therefore  a  child  advanced  by  her  father  in  his  life,  can- 
not be  called  on  to  bring  her  share  into  hotchpot  (/). 

What  shall  constitute  such  advancement,  is  now  to  be  discussed. 

If  a  father  purchase  for  a  son  an  advowson,  or  any  other  ecclesi- 
[377]  astical  benefice,  or,  if  he  buy  him  any  office,  civil  or  military, 
these  are  held  to  be  such  advancements  either  partial  or  complete, 
according  to  the  comparative  value  of  the  estate  to  be  distributed  (u). 
And  although  the  office  be  only  at  will,  as  a  gentleman  pensioner's 
place,  or  a  commission  in  the  army,  it  is  regarded  in  the  same 
light  {w). 

A  provision  made  for  a  child  by  settlement,  either  voluntary  or 
for  a  good  consideration,  as  that  of  a  marriage,  is  an  advancement 
p)*o  tan  to  [x). 

Nor  does  the  statute  extend  only  to  land  itself  (y),  when  settled 
on  a  younger  child  by  the  father,  but  also  to  a  charge  on  the  land, 
created  by  him  for  the  benefit  of  such  child  ;  therefore,  if  a  father 
settle  a  rent  out  of  his  lands  on  a  younger  child,  this  also  is  such 
an  advancement  as  is  intended  by  the  statute  (z).  Nor  is  it  neces- 
sary that  the  provision  should  take  place  in  the  father's  lifetime  («). 
If  by  deed  he  settle  an  annuity,  to  commence  after  his  death  on 
such  child,  it  is  of  the  same  description  (b).  So  a  reversion  settled 
on  a  child,  as  it  is  capable  of  being  valued,  is  of  the  same  nature  (c). 
A  portion  secured  to  a  child,  although  in  futuro,  is  also  an  ad- 
|  37S]  vancement  (d).  And  were  it  only  contingent,  yet  when  the 
contingency  has  happened,  it  shall  be  thus  considered  (e). 

A  portion  for  a  daughter,  to  be  raised  out  of  land,  on  her  attain- 
ing the  age  of  eighteen,  or  the  day  of  her  marriage,  was  accord- 
ingly held  to   be   an   advancement   to  her  when  she  married,    al- 

(.<?)  Edwards  v.  Freeman,  2  P.  Wms.  (y)  11  Viii.  Abr.  192.  2  P.  Wms.  441, 
443.  449.    4  Burn  Eccl.  L.  344.    2  Bl.         (z)  Edwards  v.  Freeman,  2  P.  Wms. 

Com.  190.  517.  441. 

(t)  Per  Mas.  of  the  Kolls,  Walton  v.         (a)  Ibid.  2  P.  Wms.  440.  445. 
Walton,  14  Ves.  jun.  324.  (b)  Ibid.  2  P.  Wms.  442.  Swinb.  p. 

(u)  3  P.  Wms'.  317,   note  (o).     Sed  3.  s.  4. 
vid.  Swinb.  p.  3.  s.  18.  (c)  lb.  2  P.  Wms.  442. 

(w)  3  P.  Wms.  317,  note  (o).  (d)  Edwards  v.  Freeman,  2  P.  Wins. 

(x)  Edwards  v.  Freeman,  2  P.  Wms.  415. 
440.  444.     Phinev  v.  Phinev,  2  Vern.         (e)  lb.  2  I*.  Wms.  442.   116.  449. 
638. 


CHAP.  VI.]  OF  ADVANCEMENT.  378 

though  she  were  under  that  age,  and  unmarried,  at  the  time  of  the 
intestate's  death  (/). 

A  portion,  also,  while  contingent,  is  capahle  of  a  valuation,  and 
may,  it  seems,  be  brought  into  hotchpot  (g)  ;  or  the  court  may  or- 
der, that,  in  case  the  contingency  should  happen,  the  portion  shall 
be  so  distributed  as  to  make  the  rest  of  the  children  equal  with  the 
child  on  whom  it  was  settled  (A).  But  the  contingency  must  be 
so  limited  as  necessarily  to  arise  within  a  reasonable  time,  as  in  the 
above  case,  where  the  portion  was  secured  for  the  daughter,  on 
her  attaining  the  age  of  eighteen,  or  on  her  marriage  (i).  A  child 
advanced  in  part  shall  bring  in  his  advancement  only  among  the 
other  children;  for  no  benefit  shall  accrue  from  it  to  the  widow  (k). 
If  a  child  who  has  received  any  advancement  from  his  father,  shall 
die  in  his  father's  lifetime,  leaving  children,  such  children  shall 
not  be  admitted  to  their  father's  distributive  share,  unless  they 
bring  in  his  advancement  ;  since,  as  his  representatives,  they  can 
[379]  have  no  better  claim  than  he  would  have  had  if  living  (/). 

By  this  statute,  although  the  heir  at  law  shall  not  abate  in  re- 
spect to  the  land  which  came  to  him  by  descent,  or  otherwise,  from 
the  intestate  ;  yet  if  he  hath  had  an  advancement  from  his  father 
in  his  lifetime  out  of  the  personal  estate,  he  shall  abate  for  it  in  the 
same  manner  as  the  other  children  (m).  And,  were  it  merely 
the  use  of  furniture  for  his  life,  it  shall  be  regarded  as  an  advance- 
ment pro  ianto{n).  So,  where  A.  on  his  marriage  covenanted, 
in  case  of  a  second  marriage,  to  pay  his  eldest  son  by  his  first  wife 
five  hundred  pounds  ;  she  died,  leaving  a  son,  and  other  children, 
and  A.  after  a  second  marriage  died  intestate  ;  it  was  decreed,  that 
his  heir  should  bring  in  the  money,  although  he  were  in  the  na- 
ture of  a  purchaser,  under  a  marriage  settlement  (o). 

Co-heiresses  shall  also,  it  seems,  bring  in  such  advancement,  not 
being  land,  as  they  may  have  respectively  received  from  their 
father,  before  they  shall  be  entitled  to  their  distributive  shares, 
agreeably  to  the  principle  of  the  act,  and  to  the  object  of  a  just 
and  impartial  father  to  promote  an  equality  among  his  children  (/>). 

[3S0]  Such  is  the  nature  of  the  advancement  which  will  exclude 
a  child  from  any  part  of  the  residue.  Many  benefits,  however, 
may  be  conferred  upon  him  by  his  father,  which  have  been  held 
not  to  be  of  this  description. 

Small  inconsiderable  sums  of  money  given  to  a  child  by  the 
father,  or  mere  trivial  presents  he  may  make  to  the  child,  as  of  a 

(/)  2  P.  Wms.  435.    1  Eq.  Ca.  Abr.  (/)  Proud  v.  Turner,  2  P.  AVms.  560. 

249.  pi.  10.  2  Eq.  Ca.  Abr.  446.  pi.  3.  (m)  Com.    Dig".  Admon.  H.  4  Burn. 

(g)  Per  Sir  Jos.  Jekyl,  M.  R.  argu-  Eccl.  L.  344.     Fitzg".  285. 

endo.     2  P.  Wms.  442.  •    («)    Com.  Dig-.  Admen.    H.     Fitzg-. 

(k)  Per  Lord  Raymond,  C.  J.  argai-  285. 

endo.     2  P.  Wms.  446.  (o)  Phiney  v.  Phiney,  2  Vern.  638. 

(I)  2  P.  Wms.  440.  445.  449.  (p)  4  Burn.  Eccl.  L.  344.   Edwards 

(/.•)  3  Rac.  Abr.  77.     Ward  v.  Lant,  v.   Freeman,  2  P.  Wms.  440.  443. 
Prec.  Chan.  182.  184. 


380  OF  ADVANCEMENT.  [BOOK   III. 

gold  watch  or  wedding  clothes,  shall  not  he  deemed  an  advance- 
ment (q);  (I)  nor  shall  money  expended  by  the  father  for  his  main- 
tenance, nor  given  to  bind  him  apprentice,  nor  laid  out  in  his  edu- 
cation at  school,  at  the  university,  or  on  his  travels  (r).  Nor  shall 
what  a  child  receives  out  of  the  mother's  estate  be  so  regarded  ; 
for  the  statute  of  distributions  was  grounded  on  the  custom  of 
London,  which  never  affected  a  widow's  personal  estate,  and  seems 
to  include  those  only  within  the  clause  of  hotchpot,  who  are  capable 
of  having  a  wife  as  well  as  children,  which  must  be  husbands  (s). 
Nor  shall  a  provision  which  a  father  may  make  for  his  child  by 
will,  (for  a  case  may  occur  where  a  testator  may  die  intestate  as  to 
part  of  his  personal  estate, )  be  considered  in  that  light.  Nor  land 
given  by  the  father's  will  to  a  younger  child  (I). 

Such  a  provision  as  shall  be  construed  an  advancement,  must  re- 
sult from  a  complete  act  of  the  intestate  in  his  lifetime  (u),  by  which 
he  divested  himself  of  all  property  in  the  subject,  though,  as  we 
have  just  seen  (to),  it  may  not  take  effect  in  possession  till  after 
his  death.  Still  less  shall  property  given  or  bequeathed  to  the 
[381]  child  by  any  other  person  be  so  denominated  (x)  ;  and  least 
of  all,  shall  a  fortune  of  his  own  acquisition  (y). 

In  respect  to  Borough  English  lands,  which  descend  to  the 
youngest  son,  i[  has  been  held  that  he  should  allow  for  them,  on 
the  ground,  that  the  statute  intended  merely  to  provide  for  the 
heir  of  the  family,  that  is  the  heir  by  the  common  law,  and  not  one 
who  is  heir  only  by  custom  in  some  particular  places  (z).  But  that 
decision  has  been  over-ruled,  and  it  is  now  settled,  that  such  young- 
est son  shall  have  an  equal  share  of  the  distribution  with  the  other 
children,  without  regard  to  this  species  of  estate  ;  for  although  the 
exception  in  the  statute  extend  only  to  the  eldest  son,  yet  no  law 
exists  to  oblige  the  heir  in  Borough  English  to  bring  in  his  lands. 
1  he  statute  contains  no  such  requisition.  It  speaks  merely  of  such 
estate  as  a  child  hath  by  settlement,  or  by  advancement  of  the  in- 
testate in  his  lifetime  (a). 

Thus  must  the  surplus  be  distributed  in  case  the  intestate  has 
left  a  wife  and  children,  or  representative  of  children. 

(q)  3  P.  Wms.  317.  note  (o).  El-  (u)  2  P.  Wms.  440. 
liott  v.  Collier,  1  Ves.  16.  Garon  v.  (w)  Vid.  supr.  377. 
Trippit,  Ambl.  189.    Elliott  v.  Collier,  (x)  3  Bac.    Abr.  76.    Swinb.  p.  3.  s. 

3  Atk.  528.  18. 

(r>  3   Bac.  Abr.  76.  Swinb.  p.  3.  s.         (y)  Swinb.  p.  3.  s.  18. 
18.    Edwards  v.   Freeman,  2  P.  Wins.         (z)  Per  Sir  Jos.  Jekyl,    M.    R.   Stra. 

449.  935. 

(*)  Holt  v.  Frederick,   2   P.    Wms.         (a)  Per  Lord  Talbot,  C.  Lutwvche 

356.  v.  Lutwvche.  Ca.  Temp.  Talb.  276.    4 

(/)  Edwards  V.  Freeman,  2  P.    Wms.  Burn.  Eccl.  L.  345. 
440,  446. 


(1)   Af'Caw  v.   Blnoit,  2  M'Cord's  Cha.  Rep.  102. 


CHAP.  VI.]  OF  ADVANCEMENT.  382 

The  statute  then  provides,  that  if  there  he  no  children  or  legal 
[382]  representatives  of  them,  in  existence,  a  moiety  shall  go  to 
the  widow,  and  a  moiety  to  the  next  of  kindred,  in  equal  degree, 
and  their  representatives  ;  hut  no  representation  among  collaterals 
shall  he  admitted  farther  than  hrothers'  and  sisters'  children.  If 
there  be  no  widow,  the  whole  shall  go  to  the  children.  If  there 
be  neither  widow  nor  children,  then  the  whole  shall  be  distributed 
among  the  next  of  kin,  in  equal  degree,  and  their  representatives, 
as  above  mentioned.  (1) 

The  next  of  kin  referred  to  by  the  statute  are  to  be  traced  by 
the  same  rules  of  consanguinity  as  those  who  are  entitled  to  letters 
of  administration  (b).  Those  rules  have  been  already  discussed  (c). 

The  mother,  therefore,  as  well  as  the  father,  succeeded  to  all 
the  personal  effects  of  the  children  who  died  intestate  without 
wife  or  issue,  .in  exclusion  of  the  other  sons  and  daughters,  the 
brothers  and  sisters  of  the  deceased;  and  such  is  the  law  still  with 
respect  to  the  father  (d) :  but  by  the  stat.  1  Jac.  2.  c.  17.  s.  7.  if,  af- 
ter the  death  of  the  father,  and  in  the  lifetime  of  the  mother,  any 
of  the  children  die  intestate,  without  wife  or  children,  every 
brother  and  sister,  and  their  representatives,  shall  have  an  equal 
share  with  her.  The  principle  of  which  provision  is  this,  that 
otherwise  the  mother  might  marry,  and  transfer  all  to  another  hus- 
band (e). 

[3S3]  On  this  last-mentioned  statute  it  has  been  held,  that  if  A. 
die  intestate,  and  without  issue,  leaving  a  wife,  and  several  bro- 
thers and  sisters,  and  his  mother  living,  the  mother  shall  have  no 
more  than  an  equal  share  of  a  moiety  of  the  estate  with  the  bro- 
thers and  sisters.  And  although  there  should  be  no  brother  or 
sister,  yet  if  there  be  children  of  a  deceased  brother  or  sister,  they 
shall  partake  with  their  grandmother  to  the  same  extent  as  their 
parent  would  have  been  entitled  (/).  But  if  there  be  neither  bro- 
ther nor  sister,  nor  representative  of  a  brother  or  sister,  the' case 
is  without  the  statute,  and  the  whole  of  such  intestate's  effects  shall 
devolve,  as  before,  to  his  mother  (g).     Also,  by  analogy  to  the  sta- 

(b)  2  Bl.  Cum.  515.  Lloyd  v.  Tench,     Davis,  Com.  Rep.  26.  pi.  95. 

2  Ves.  214.  (/)    Kcvlwav    v.    Keylway,     2    P. 

(c)  Vid.  supr.  87.  Wms.    344"   S.  C   1  Stra.  710.     S.  C. 
{d)  2  Bl.  Com.  513,  516.    Evelyn  v.     Gilb.  Rep.  189.    Stanley  v.  Stanley,   1 

Evelvn,  Ambl.  192.  Atk.  455. 

(e)  Blackborough  v.  Davies,-1  Salk.         (g)  4  Burn.  Eccl.  L.  374.     11  Vin. 
251.    pi.  2.  S.  C.    1   P.   Wms.  4S,  49.     Abr.  196. 
S.C.  Lord  Raym.  684.  Blackborough«v. 

ft 

(1)  Under  the  intestate  laws  of  Pennsylvania,  if  a  man  die  intestate  leaving 
neither  widow  nor  lawful  issue,  nor  father,  brother,  nor  sister,  but  leaving  a  mo- 
ther, real  estate  acquired  by  his  father,  and  descending-  to  him,  goes  to  his  rela- 
tions on  the  part  of  the  father,  in  exclusion  of  the  relations  on  the  part  of  tlie 
mother,  in  equal  degree.  Sevan  v.  Taylor,  7  Serg.  &.  Rawle,  397,  overriding 
Walker's  Mm.   v.   Smith,  3  Yeates,  480. 

33 


383  OF  DTSTIM  I'.iri  ION.  |  HOOK    I 

i 1 1 1 <  ol  dintribiUions  such  representation  shall  nol  f>c  carried  be- 
yond brothers'  and  sisters'  Children  (A).  A  mother  in-law  of  the 
intestate,  it.  is  clear,  can  claim  no  Bhare  in  the  distribution,  she  not 
being  <>i  his  blodfcl  (i). 

'I'd  return  now  to  the.  statute  of  distributions.  That  clause  ol'  it 
which  expresses  that  there  shall  he  no  representations  among  col- 
laterals beyond  brothers'  and  sisters'  children,  must,  hi:  construed 
to  mean  brothers  and  sisters  ol'  tin-,  intestate,  and  nol.  ;is  admitting 
representation,  when  the  distribution  happens  to  fall  among  hro- 
thers  and  sisters  who  arc  remotely  related  to  the  intestate  ;  for  the 
intestate  is  the  subject  of  the  act  :  it  is  his  estate,  his  wife,  his  chil- 
dren, and  far  the  same  reason  his  brothers'  and  sisters'  children,  foi 
[3S4]  he  is  equally  correlative  to  all  (&).  Therefore  it  has  been 
held,  thai,  if  the  brother  of  an  intestate  hath  a  grandson,  and  a  sis- 
ter has  a  son,  or  daughter,  the  grandson  shall  not  have  distribution 
with  the  son  or  daughter  of  the  sister(/).  So  it  has  been  decreed, 
thai  if  an  intestate  leave  an  uncle,  and  a  deceased    aunt's    son,    th< 

latter  shall  have  no  distributive  Bhare  (m).  Tims  though  as  we 
have  seen  (//.),  among  lineals,  representatives  ad  infinitum  shall 
share  in  the  distribution  of  an  intestate's  personal  estate,  yet  among 
collaterals,  except  only  in  the  instance  of  the  intestate's  broth 
and  sisters'  children,  proximity  of  blood  shall  alone  give  a  title 
to  it. 

The  children  of  an  intestate's  brothers  and  sisters,  who  were  de- 
ceased at  his  death,  shall  take  per  capita.     Therefore,  if  an  in 
tate  leave  a  deceased  brother's  only  son,  and  ten  children  of  a  de- 
ceased half-sister,  the  ten  children  of  the  deceased  half-sister  shall 
talce  ten  parts  in  eleven  with  the  son  of  the  deceased  brother  (d). 

The  words  of  the  statute  must  be  taken  together.  The  expres- 
sion ;;w;  suo  cu'h/ik:  jure,  will  let  in  any  advantage  of  equality  or 
preference!  which  a  person  was  entitled  by  our  law  before-  the  sta- 
tute. Therefore  a  grandfather,  ah  hough  he  be  in  an  equal  degree  ol 
consanguinity  with  the  brother  of  the  deceased,  shall  have  no  share 
with  him  in  the  distribution  :  for,  by  the  common  law,  there  was 
but  one  degree  between  brother  and  brothel-,  and  it  wonld  be  un- 
natural to  carry  the  personal  estate  up  to  the  grandfather,  who  must 
be  presumed  to  have  been  long  before  provided  for,  and  to  be  go- 
ing out  of  life  (]>). 

So  a  grandfather  shall  exclude  an  uncle  ;  ami,  independently  of 
the  provisions  of  the  statute,  by  the  common   law  the    former  was 

(//)  Stanley  v.  Stanley,    1  AiU.  '157,  1  I*.  Witts.  25.     Bowers  v.  Link. 

•il>. 
(»)   Duke  of  Rutlanti  v.    Duchess  of        (/)   I  Salk- 250.     1   1..1.    Raytn. 

liiiul,   2  I'.  Wins.  216.  1  P.  Wins.  J>.   Com.  Rep.  87. 
!  Carter  v.  Crawley,    Raym.  496.        {m)    Bowers    v.    Littlewood,    1    »' 

Caldicot  v.  Smith,  2  Show.  286.    Bcc»  Wms.  594, 
ton  v.   Djrkin,  "■  Vern.   168.     Maw   v.        (»)  Bupr.  373. 
Hartlinjf,   ibid.   '233.     Petl   v.   IMl,    1         (u)   "''"I-     1   P-  Wiuj 
Sulk.  250.    S.   C.   U<1.    Raym.    571.     S.  (/<)    Kvelyn  v.  Kvelyn,    Amltl 

C.    CoiA   l.'<-|>.   87.   |)1.   5p.       I'i-H's  r;\  ;e,  vij.  Sllpr.  90  lllltl  91,. 


CHAP.   VI.]  OF  DISTRIBUTION.  381 

entitled  to  a  preference,  as  being  of  the  right  line,  whereas  the  lat- 
ter is  only  of  the  collateral  line  ;  in  other  words,  the  grandfather  is 
[385]  the  root  of  the  kindred,  and  the  uncle  is  only  the  branch  (//). 

The  law,  of  course,  is  the  same  in  respect  to  grandmothers  and 
aunts  (Y). 

Where  the  next  of  kin  are,  a  grandfather  by  the  father's  side, 
and  a  grandmother  by  the  mother's,  they  shall  take  in  equal  moi- 
eties, as  being  in  equal  degree:  for,  in  respect  of  such  claims,  as 
hath  formerly  been  observed  (s),  dignity  of  blood  makes  no  differ- 
ence (t). 

Uncles  and  nephews,  aunts  and  nieces,  are  in  equal  degree.  And 
where  the  intestate  left  two  aunts,  and  a  nephew  and  a  niece,  chil- 
dren of  a  deceased  brother,  Lord  Hardwicke  C.  ordered  the  surplus 
to  be  divided  into  four  parts  equally  among  them,  holding  that  as 
tbey  were  all  in  equal  degree,  the  children  were  to  take  in  their  own 
right  and  not  by  representation  ;  but  that  if  their  father  had  been 
living,  he  would  have  been  entitled  to  the  whole  (u). 

The  grand-daughter  of  a  sister,  and  the  daughter  of  an  aunt  ot 
the  intestate  are  also  in  equal  degree,  and  entitled  to  equal  distribu- 
tion (w). 

The  next  of  kin,  though  collateral,  is  preferred  before  a  relation, 
though  lineal,  if  he  be  of  the  ascending  line,  and  more  remote  (ar), 

[3801  Although  the  statute  direct  that  no  distribution  shall  be 
made  till  a  year  be  elapsed  from  the  death  of  the  intestate,  yet,  if 
a  person  entitled  to  a  distributive  share  shall  die  within  the  year, 
such  interest  shall  be  considered  as  vested  in  him,  and  shall  go  to 
his  personal  representative  ;  for  this  proviso  makes  no  suspension 
or  condition,  precedent  to  the  interest  of  the  parties,  but  was  insert- 
ed merely  with  a  view  to  creditors. 

The  statute,  also,  is  in  the  nature  of  a  will  framed  by' the  legisla- 
ture for  all  such  persons  as  die  without  having  made  one  for  them- 
selves ;  and,  by  consequence,  the  parties  entitled  in  distribution 
resemble  a  residuary  legatee  :  and  it  has  been  always  held,  that  if 
such  legatee  die  before  the  amount  of  the  surplus  is  ascertained,  still 
his  representative  shall  have  the  whole  residue,  and  not  the  repre- 
sentative of  the  first  testator  ( y).  (1) 

(q)  Blackboroutrh  v.  Davis,    1  Salk.         (w)  Com.  Dig.    Admon.  II.    Thomas 

.18.  251.    S.  C.    i.d.  Raym.684.  S.  C.  v.  Ketteriche,  1  Ves.  .... 
Com.   Rep.  96.     108,    109.    S.  C.     12         (j;)  Blaftkborough    v.    Davielj   1  I'. 

Mods   61.5.     Lloyd   v.  Tench,    2  Ves.  Wms.  51. 

215.    Blackborough  v.    Davies,    1  P.         (//)  3«Bac.  Abr.  75.  Brown  v.  Fani- 

Wms.  41.  clcli,  Carl.li.  51,  52.    Frcke  v.  Thomas, 

(r)  Com.  Dig.  Atlmon.  II.     1   Salk.  Cobb.  112.     Taylor  v.  Acres,  2  Show 

38.    2.51.      Woodroif    v.     Wickworth,  285.    Palmer  v.   Allicock,    Skin. 

Prec  Ch.  527.  218,  S.  C.  3  Mod;  58.   11  V"m.  Al*r.  92 

(s)  Supr.  91.  Wilcock's    v.  Wileocks,    2  Vern.  559. 

(I)   Blackborough  v.     Davies,     1   P.  3  P.  Wins.  K).  note  (rf).      Lei   v     Cos 

53.  \  \ik.  422.     Vi'l     itpr.  ..-l  ' 

(u)  Qucant  v.  PreStwood,  1  Atk 


(1)  As  to  the  m  legal  yeprcs   titatire**' undeft a    Icvi  ■>    H'"'< 


386  OF  DISTRIBUTION.  [BOOK  III. 

Affinity,  or  relationship  by  marriage,  except  in  the  instance  of 
the  wife  of  the  intestate,  gives  no  title  to  a  share  of  his  property  : 
as,  if  A.  have  a  son  and  a  daughter,  B.  and  C,  and  they  both  die, 
the  former  leaving  a  wife,  and  the  latter  a  husband  ;  on  xY.'s  dying 
afterwards  intestate,  such  husband  and  wife  have  neither  of  them 
any  claim  on  his  estate. 

Under  a  will,  a  wife  is  not  one  of  the  next  of  kin  in  the  ordinary 
sense.  Therefore  where  a  testator  gave  the  residue  of  his  proper- 
ty "  to  be  divided  amongst  my  next  of  kin,  as  if  I  had  died  intes- 
tate," the  widow  was  held  not  to  be  entitled  to  any  share  of  such 
residue  (r). 

A  gift  of  property  to  my  nearest  surviving  relations  has  been 
held  to  mean  the  testator's  brothers  and  sisters,  to  the  exclusion  of 
nephews  and  nieces  («). 

If  a  bastard,  or  any  other  person  having  no  kindred,  die  intestate, 
[387]  without  wife  or  child,  his  effects,  as  we  have  seen  (b),  belong 
to  the  king,  who,  with  the  exception  of  a  small  part,  usually  grants 
them  by  letters  patent  or  otherwise  ;  and  then  such  grantee  seems 
of  course  entitled  to  the  administration,  and  consequently  to  the 
sole  enjoyment  of  the  property  (c). 

The  personal  property  of  an  intestate,  wherever  situated,  must  be 
distributed  according  to  the  law  of  the  country  where  his  domicil 
was,(l)  and  such  is  prima  facie  the  place  of  his  residence;  but  that 
may  be  rebutted  ;  or  supported  by  circumstances  {d)  ;  for  although 
the  locality  of  the  party's  abode  at  the  time  of  his  death  determine 
the  rule  of  distribution,  yet  it  must  be  a  stationary,  not  an  occasion- 
al, residence,  in  order  that  the  municipal  institutions  may  attach  on 
the  property  (e).  If,  therefore,  an  Englishman  be  settled,  and  die 
in  this  country,  and  administration  be  taken  out  to  him  here,  debts 
due  to  him,  or  other  of  his  personal  effects  in  Scotland,  or  abroad, 
shall  be  distributed  according  to  the  law  of  England  {/)  :  But  if  an 
alien  resident  abroad  die  intestate,  his  whole  property  here  is  dis- 

(z)    Garrick   v.   Lord  Camden,    14  (d)  2  Ves.  jun.  198.     See  also  Sir 

Ves.  jun.  372.  Chas.  Douglas's  case  there  cited. 

'  («)  Smith  v.  Campbell,  Coop.  Rep.  (e)  1  Wooddes.  385.  Pipon  v.  Pipon, 

275.  Ambl.    25.  Burn  v.  Cole,  ib.  415,  416. 

(4)  Vid.  sup.  107.  (/)  Thorne  v.  Watkins,  2  Ves.  35. 

(c)  2  Bl.  Com.  505.     Doug.  542. 


Lessee  v.  Fisher,  2  Yeates,  578.  *  And  as  to  the  meaning  of  the  same  words  in  the 
Act  of  29th  March,  1813,  "  for  the  relief  of  sundry  landholders  in  the  manor  of 
Springettsbury  in  the  county  of  York,"  (Pamph.  Laws,  205.)  and  the  Act  of 
21st  December,  1784,  sect.  9.  giving  the  right  of  preemption,  to  certain  lands 
on  the  west  branch  of  Susquehanna  river,  to  settlers  and  their  legal  representa- 
tives, (Carey  &  Bioren's  Laws,  vol.  3.  p.  519.)  see  Comm.  v.  Bryan,  6  Serg. 
&  Rawle,  81.     Duncan  v.    Walker,  2  Dall.  Rep.  205. 

(1)  Guier  v.  0' Daniel,  1  Binn.  349.  Harvey  v.  Richards,  1  Mason's  Rep.  381; 
and  the  case*  there  cited  by  Judge  Story.  Williamson  v.  Smart,  Tayl.  Rep.  219. 
Cam.  &,  Norw.  146. 


CHAP.   VI.]  OF  DISTRIBUTION.  387 

tributable  according  to  the  laws  of  the  country  where  he  so  resides, 
otherwise  no  foreigner  could  deal  in  our  funds  hut  at  the  peril  of  his 
effects  going  according  to  our  laws,  and  not  to  those  of  his  own 
country  (g). 

Where  a  native  of  England  domiciled  in  Guernsey  died  intes- 
tate, leaving  a  widow  and  infant  children,  and  the  widow  was  ap- 
pointed guardian  of  the  children  by  the  royal  court  of  Guernsey,  and 
[388]  sold  the  property  of  the  intestate,  and  invested  the  produce 
in  the  English  funds,  and  afterwards  came  to  England  with  her 
children,  and  was  domiciled  there  :  A  question  arose  on  the  death 
of  some  of  the  children  underage,  whether  their  shares  of  the  pro- 
perty became  distributable  according  to  the  law  of  England  or  of 
Guernsey  ;  and  it  was  held,  that  the  law  of  England  was  to  govern 
the  succession,  the  domicil  of  the  children  being  (according  to  the 
opinion  of  foreign  jurists,  our  own  law  being  silent  on  the  subject) 
to  follow  the  domicil  of  the  surviving  parent,  where  no  fraudulent 
intention  can  be  imputed.  But  fraud  may  be  presumed  where  no 
reasonable  cause  appears  for  the  removal  (A). 


Sect.  II. 
Of  distribution  by  the  custom  of  London. 

I  proceed,  in  the  last  place,  to  consider  the  customs  of  the  city 
of  London  on  this  subject,  and  also  of  the  province  of  York,  and 
the  principality  of  Wales  ;  which  having  peculiar  customs  of  dis- 
tributing intestate's  effects,  are  expressly  excepted  from  the  opera- 
tion of  the  statute. 

Although  the  restraints  in  regard  to  the  power  of  making  wills, 
which  subsisted  in  those  respective  districts,  are  now  removed  by 
different  statutes  ;  namely,  the  4  &  5  W.  <§•  M.  c.  2.  explained  by 
the  2  &  3  Ann.  c.  5.  for  the  province  of  York  ;  the  7  &  8  W.  3.  c. 
38.  for  Wales  ;  and  the  11  G.  1.  c.  18.  for  London;  by  which 
persons  residing  in  those  several  places,  and  liable  to  those  customs, 
are  empowered  to  dispose  of  all  their  personal  estates  by  will,  and 
the  claims  of  the  widows,  children,  and  other  relations  to  the  con- 
trary are  totally  barred  ;  yet  those  customs  remain  in  full  force 
with  respect  to  such  property  of  an  intestate  (a),  or  where  the  de- 
ceased freeman  agreed  by  writing,  in  consideration  of  marriage  or 
otherwise,  that  his  personal  estate  should  be  distributed  according 
to  the  same.  Their  nature  and  incidents  therefore  demand  now  our 
attention. 

(g)  1  Wooddes.  585.  Pipon  v.  Pipon,     Rep.  67. 
Anibl.  27.  (a)  2  Bl.  Coin-  493.  517,  518.  L.  of 

(A)  Potinger  v.   Wightman,  3  Meri.     Test.  194.    3  P.  Wnis.  19.  in  note. 


.389  •  OF  DISTRIBUTION  [liOOK  III. 

[38.0]  In  the  city  of  London  (b),  and  in  the  province  of  York  (c), 
as  well  as  in  the  kingdom  of  Scotland  (d),  and  therefore,  probably 
also  in  Wales  (e),  (respecting  the  latter  of  which,  little  information 
is  to  be  collected,  except  from  the  statute  of  W.  3.)  the  effects  of  the 
intestate,  after  payment  of  his  debts,  are  in  general  divided  accord- 
ing to  the  ancient  doctrine  of« thenars  rationabilis  (f),  to  which 
I  have  before  alluded  (g). 

And  first,  as  to  the  custom  of  London  ;  if  a  freeman  of  the  city 
die,  leaving  a  widow  and  children,  his  personal  property,  after  de- 
ducting her  apparel,  and  the  furniture  of  her  bed  chamber,  is  divid- 
ed into  three  equal  parts,  one  of  which  belongs  to  the  widow,  ano- 
ther to  the  children,  and  the  third  to  the  administrator  in  that  char- 
acter. If  only  a  widow,  or  only  children,  they  shall  respectively 
in  either  case  take  one  moiety,  and  the  administrator  the  other  (A). 
If  neither  widow  nor  child,  the  administrator  shall  have  the 
whole  (i). 

The  portion  of  the  administrator  is  styled  in  law  the  dead  man's 
part.  It  is  so  called,  because  formerly,  as  we  have  seen  (&),  the  or- 
dinary or  his  grantee  was  to  dispose  of  it  in  masses  for  the  deceased's 
[390]  soul.  But,  after  the  disuse  of  this  superstitious  practice,  the 
administrator  was  wont  to  apply  it  to  a  better  purpose,  that  is  to 
say,  for  his  own  benefit  (/)  ;  till  the  legislature  thought  it  was  ca- 
pable of  an  application  still  better  ;  and  accordingly,  by  the  stat.  1 
Jac.  2.  c.  17,  it  was  declared,  that  it  should  be  subject  to  the  law 
of  distributions. 

Hence,  if  a  freeman  die  worth  eighteen  hundred  pounds  person- 
al estate,  leaving  a  widow  and  two  children,  this  estate  shall  be  di- 
vided into  eighteen  parts  ;  of  which  the  widow  shall  have  eight, 
six  by  the  custom  and  two  by  the  statute  ;  and  each  of  the  children 
five,  three  by  the  custom  and  two  by  the  statute;  if  he  leave  a  widow 
and  one  child  only,  she  shall  still  have  eight  parts  as  before  ;  and 
the  child  shall  have  ten,  six  by  the  custom,  and  four  by  the  statute  ; 
if  he  leave  a  widow  and  no  child,  the  widow  shall  have  three  fourths 
of  the  whole,  two  by  the  custom  and  one  by  the  statute  ;  and  the 
remaining  fourth  shall  go  by  the  statute  to  the  next  of  kin  (m). 

A  posthumous  child  shall  come  in  for  his  customary  share  with 
the  other  children  (n).     But  the  custom  extends  merely  to   the 

(b)  Redshaw  v.  Brasier,  Lcl.  Raym.     3  Atk.  527. 

1329.*   4  Burn.  Eccl.  L.  387.  (i)  Percival  v.  Crispe,  2  Show.   175. 

(c)  4  Burn.  Eccl.  L.  398.  Vid.  L.  of  Test.  192. 
(//)  [bid.  421.  (A-)  Supv.  81. 

(e)  Ibid.  423,442.     '  (/)  Anon.  2  Freem.  So.    Matrtews  \ 

(/)  2  Bl.  Com.  518.     Off".  Ex.  97.  Newbv,  1  Vern.  133. 
(Z)  Supr.  81.  (mj  2  Bl.  Com.  518.  L.  of  Test.  289 

(//)  Northey  v.   Strange,  1  P.  Wins.         (»)  Walsafn  v.  Skinner,  Prec.  Chan. 

341.     Rcgina  v.    Rogers,  2  Salk.  426.  499.    L.  of  Test.  203.      11   \  in.   Abr. 

Turner  v.  Jennings,  2  Vern.  612.     L  200.    Gilb.  Eq.  Rep.  155. 

of   Test.  210,  21  f     Elliot  v.   Collier. 


<  J 1 1 A  P .   VI.  1  BY    THE  CUSTOM   Ol    LONDON.  390 

"J^  '    -*■'  '■' 

wife  and  children  of  the  freeman,  and  not  lo  his  grandchildren  (o). 

Hence  if  a  freeman  die  intestate  leaving  a  wife  but  no  child,  yet 
if  there  hath  been  a  child,  and  there  be  any  legal  representatives, 
[391]  that  is,  lineal  descendants  of  such  child,  they  are  admitted 
to  his  distributive  share  of  the  dead  man's  part  under  the  statute, 
though  they  are  entitled  to  no  part  of  his  share  by  the  custom.  In 
that  case,  therefore,  of  the  dead  man's  part  by  the  statute,  the  wife 
shall  have  one  third,  and  the  representatives  shall  have  the  other 
two  thirds  ;  so  that,  dividing  the  whole  personal  estate  into  six 
parts,  she  shall  have  four,  and  the  representatives  two. 

If  there  be  neither  wife  nor  child,  nor  such  representative  of  a 
child,  the  whole  shall  be  subject  to  the  statute  of  distribution  (p). 

The  custom  attaches,  although  the  freeman  neither  resided,  nor 
died  (q),  nor  left  property  (r)  within  the  city. 

In  respect  to  the  widow,  I  have  already  mentioned  that  she  is 
entitled  to  her  apparel  and  the  furniture  of  her  chamber,  which  is 
called  the  widow's  chamber  (s) ;  or,  in  lieu  of  it,  in  case  the  estate 
shall  exceed  two  thousand  pounds,  it  has  been  said  that  she  is  enti- 
tled to  fifty  pounds  (7)-  The  privilege  of  the  widow's  chamber  is 
analogous  to  her  right  to  paraphernalia  in  general  cases,  and,  like 
that,  shall  in  no  case  be  exercised  to  the  prejudice  of  creditors  (u). 

[392]  If  she  be  provided  for  by  a  jointure  before  marriage  in  bar 
of  her  customary  part,  she  is  put  in  a  state  of  nonentity  with  regard 
to  the  custom  only  (w)  ;  but  she  shall  still  be  entitled  to  her  share 
of  the  dead  man's  part  under  the  statute  of  distributions  (x).  But 
if  the  jointure  is  expressed  to  be  in  barof  her  dower  without  saying 
more,  this  shall  not  bar  her  of  her  cus^pmary  share  of  the  personal 
estate,  for  land  is  wholly  out  of  the  custom  Qj).  Such  also  is  the 
case,  if  the  intestate  covenant  to  lay  out  money  in  a  purchase  of 
land  by  way  of  jointure,  for  the  money  has  in  equity  all  the  qualities 
of  land  O). 

And  a  fortiori  she  shall  not  be  excluded  from  her  customary 

(o)  Northey  v.  Strange,   1  P.  Wms.         («)  Swinb.  p.  6.  s.  13. 
341.      Fowke  v.  Hunt,    1    Vcrn.   397.         (w)  Hancock  v.  Hancock,   2  Vern. 

Regina  v.   Rogers,  2   Salk.  426.   L.  of  665.     Blunder  v.  Barker,   1  P.   Wms. 

Test.  210.  644.     Cleaver  v.  SpUrling,  2  P.  Wins. 

(p)  L.    of  Test.    192.  221,  "222.    1  527.      Levvin    v.    Lewin,    3  P.  Wms. 

Vein.  200.  16.   Pusey  v.  Desbouverie,  315,    Med- 

(?)  L.  of  Test.  202,  220.  Spencer's  calfe  v.  Medcalfe,  1  Atk.  64.  Morris 
case,  1  Roll.  Rep.  316.  Wilkinson  v.  v.  Burroughs,  403.  Tomkyns  v.  Lad- 
Miles,  1  Sid.  250.  Harwood's  case,  broke,  2  Ves.  592. 
1  Ventr.  180.  S  C.  1  Mod.  80.  Butter  (a?)  Benson  v.  Bellasis,  1  Vern.  15. 
v.  Butter,  1  Vern.  18).  Chomlev  v.  2  Chan.  Rep.  252.  Withill  v.  Phelps, 
Chomlev,  2  Vern.  48.  82.  Webb  v.  Prec.  Ch.  327. 
Webb,  lb.  110.  (?/)  1  Ca.  Abr.  1-58,  159.  Babington 

(r)  Priv.  Lond.  2S3.  v.  Greenwood,    1  P.  Wms.  531.    Bluii- 

(.*)  2  Bl.  Com.  518.  tier    v.    Barker,     647.       Babington    v. 

(/)  7   Mn.    Abr.  2.    tit.  Customs,  P..  Greenwood,  Prec.   Chan.    505.     L.  of 

2.    P.riddle  v.  Briddle,  4  Buriv.  Eccl.  L.  Test.  214. 

(=)'S.  C.  1  P.  Wms.  532. 


392  OF  ADVANCEMENT  [BOOK  III. 

.share,  if  the  settlement  he  so  expressed  ;  as  if  it  contain  a  proviso, 
that  she  shall  not  he  harred  or  deprived  of  her  right  to  dower,  or  of 
taking  any  other  gift,  provision,  or  bequest  her  husband  shall  think 
fit  to  give,  or  leave  her  by  deed  or  will,  or  any  other  means  whatso- 
ever [a).  On  the  other  hand,  the  settlement  may  be  expressly  in 
bar  as  well  of  her  share  of  the  dead  man's  part  as  of  her  share  by  the 
custom,  and  then  she  shall  be  excluded  from  both  (b)  :  or  if  it  be 
made  in  satisfaction  of  all  her  demands  out  of  his  personal  estate  by 
the  custom,  or  otherwise,  she  shall  be  barred  also  of  her  share  under 
[393]  the  statute  (c) :  or  it  may  thus  operate  on  the  evident  though 
only  implied  intention  of  the  parties  (fi/). 

If  the  wife  be  divorced  for  adultery  a  mensd  et  thoro,  she  for- 
feits her  customary  share  (e). 

If  a  freeman  leave  several  children,  the  share  or  the  orphanage 
part  of  any  one  of  them  is  not  vested  in  him  by  the  custom  till  the 
age  of  twenty-one,  after  which  period  but  not  before,  he  may  dis- 
pose of  it  by  will,  or,  in  case  of  his  dying  intestate,  it  shall  be  dis- 
tributed pursuant  to  the  statute.  If  he  die  under  that  age,  whether 
sole  or  married,  his  share  shall  survive  to  the  others  (f)  ;  whereas 
the  share  by  the  statute  is  vested,  and  therefore  such  child  may  de- 
vise it  at  the  age  of  fourteen,  if  a  son,  and  at  twelve  if  a  daughter  (g). 
But  the  survivorship  of  the  ophanage  part  holds  only  as  to  the  or- 
phanage part  belonging  to  the  deceased  himself,  for  if  he  had  by  sur- 
vivorship the  part  of  any  of  his  brothers  or  sisters,  that  shall  go  ac- 
cording to  the  statute  (A).  In  case  there  be  only  one  child,  his  or- 
phanage part  is  vested  in  him,  in  the  same  manner  as  his  share  by 
the  statute,  and  is  devisable  by  him  at  the  same  age  (i).  If  a  man 
[394]  marry  an  orphan  under  the  age  of  twenty-one,  it  seems  his 
right  is  so  vested  as  to  prevent  his  wife's  share  from  surviving,  in 
case  of  her  death,  before  she  attains  that  age  (k). 

The  children  of  a  freeman  are  entitled  to  the  benefit  of  the  custom, 
although  they  were  born  out  of  the  city  (/). 

If  any  of  the  children  are  advanced  to  the  full  extent  of  the  custom 
by  the  father  in  his  lifetime,  they  shall  be  entitled  by  the  custom  to 
no  further  dividend  (m).  If  a  freeman  have  several  children,  and 
fully  advance  them  all,  the  custom  in  regard  to  them  is  satisfied, 

(a)  Kirkman  v.  Kirkman,  2  Bro.  Ch.  sing-ton,  Prec.  Ch.  207.  537. 

Ttop.  95.  (g)  Vid.  supr.  8. 

(/;)    1   Eq.  Ca.  Abr.  15:3.     Atkvns  v.  (h)  Jesson  v.  Essington,   Prec.  Ch. 

Wifterson,  Gilb.  Eq.    Rep.   95.    S.   C.  537. 

I,,  of  Test.  214.     Babing-ton  v.  Green-  (/)  3  P.  Wms.  318.  note  (q).     Vid. 

wood,  1  P.  Wms.  531.    *"                .  also  Prec.  Chan.  207. 

(c)  7  Vin.  Abr.  21 1.  Benson  v.  Bel-  (k)  Fouke  v.  Lewen,  1  Vem.  88. 
lasis,    1  Vern.  15.       4  Burn.  Eccl.  L.  sed.  vid.  Prec.  Ch.  537. 

404.  Vid.  E.  of  Test.  212,  213.  (/)    L.    of   Test.     202.      Harwood's 

(d)  L.  of  Test.  212.  L.  of  Lorid.  102.     case,   1  Ventr.   180.   S.  C   1  Mod.  80. 

(e)  Pcttifcr  v.  James,  Bnmb.  16.  (;;?)  Cleaver  v.  Spurling1,  2  P.  Wms. 
(/)  2  Bl.   Com.  519.     Wilcocks  v.     527. 

Wileorks,   2  \' cm.  558.    Jesson  v.  Es- 


CHAP.  VI.]  BY  THE  CUSTOM  OF  LONDON.  394 

and  his  personal  estate,  independent  of  the  widow's  customary  share, 
shall  be  distributed  according  to  the  statute.  If  he  has  only  one 
child,  and  fully  advances  him,  the  consequence  is  the  same  (n).  If 
the  children  are  advanced  only  partially,  they  must  bring  their  por- 
tion into  hotchpot  before  they  can  derive  any  advantage  from  the 
custom  ;  and  in  that  case  their  portion  must  be  so  brought  in  with 
the  other  brothers  and  sisters,  but  not  with  their  mother,  for  the 
principle  here  also  is  to  make  an  equality  among  the  children,  and 
not  to  benefit  the  widow  (o).  Nor,  where  a  freeman  has  in  part 
advanced  his  only  child,  shall  such  child  bring  in  his  advancement, 
[395]  for  there  is  none  to  claim  with  him  of  equal  degree  (p).  And 
where  one  of  several  such  children  is  advanced,  his  advancement 
shall  be  in  satisfaction  merely  of  his  orphanage  share,  but  not  of 
his  share  of  the  dead  man's  part,  to  the  whole  of  which  he  shall  be 
entitled,  without  regard  to  what  he  shall  have  received  from  his 
lather  (q). 

In  case  such  advancement  be  brought  into  hotchpot,  it  must  be 
brought  into  the  orphanage  part  only  (r). 

If  the  advancement  shall  have  exceeded  the  child's  share  by  the 
custom,  whether  he  must  bring  in  such  excess  before  he  is  entitled 
to  his  share  of  the  part  distributable  by  the  statute,  is  a  point  on 
which  there  are  opposite  opinions.  By  some  writers  it  has  been 
held,  that  he  has  a  claim  to  his  full  share  by  the  statute,  without  any 
retrospect  to  his  advancement,  whatever  might  have  been  its 
amount.  By  others  it  has  been  maintained,  that  he  has  no  right  to 
such  distributive  share,  unless  he  bring  into  the  same  so  much  of 
his  advancement  as  exceeded  his  proportion  of  his  customary  partes). 
To  reconcile  this  variance,  a  distinction  has  been  suggested  between 
an  advancement  given  and  accepted  expressly  in  satisfaction  of 
the  customary  share,  and  an  advancement  given  generally  without 
any  such  agreement  or  stipulation  :  That,  in  the  former  case,  in  the 
distribution  of  the  dead  man's  part,  no  respect  shall  be  had  to  the 
[396]  advancement,  as  it  is  considered  in  the  light  of  a  purchase 
by  the  child,  and  might  have  happened  to  be  less  as  well  as  greater 
in  point  of  value  than  the  customary  part.  But  where  there  is  no 
such  special  contract  or  agreement,  and  the  advancement  is  general, 
it  shall  be  applied  either  to  the  customary  share  only,  or  both  to  the 

(n)  L.  of  Test.  206.  221.  Cleaver  v.  pet,  Ambl.  189. 

S purling-,   2  P.   Wms.  527.     Goodwin  (p)  Regina  v.  Rogers,    2  Salk.  426. 

v.    Ramsden,   1    Vern.    200.    Hancock  Fane'v.  Bence,  2  Vern.  234.     Dean  v. 

v.  Hancock,  2  Vern.  666.     Medcalfv.  Lord  Delaware,   ib.    628.      Stanton  v, 

Medcalf,  1  Atk.  64,  Piatt,  ib.  754. 

(o)  L.  of  Test.  204.  Annand  v.  Do-  (q)  Hearne  v.  Barber,  3  Atk.  214. 

nevwood,   1  Vern.   345.     Beckford    v.  Wood  v.  Brian),  2  Atk.  523. 

Beckford,  2   Vern,   281.     2  Bl.    Com.  (>•)    Beckford  v.  Beckford,   1   Vern. 

519.     Bright  v.   Smith,  2  Freem.  279.  345. 

1  Eq.  Ca.  Abr.  155.     Cleaver  v.  Spur-  (s)  Vid.  4  Burn.  Eccl.-L.  406.    Cnd- 

ling,  2  P.  Wms.  526.     Garroii  v.  Trip-  geon  v.  Ramsden,  2  Vern.  274. 

34 


396  OF  ADVANCEMENT  [BOOK  III. 

customary  and  distributive  share,  according  to  the  amount  of  the 
advancement  (/). 

As  to  the  nature  of  the  advancement,  whether  complete  or  par- 
tial, it  must  arise  exclusively  from  the  personal  estate.  In  the  es- 
tablishment of  the  custom  the  citizens  of  London  had  no  regard  to 
real  property,  on  supposition  that  a  freeman  would  not  purchase 
land,  but  would  employ  his  whole  fortune  in  commerce  (u).  If 
therefore  a  citizen  settle  a  real  estate  on  a  child,  it  shall  be  no  ad- 
vancement (ic) ;  nor,  although  it  be  expressly  for  that  purpose,  shall 
it  bar  him  of  his  orphanage  part  (x).  Nor  if  money  be  given  by 
the  father  to  be  laid  out  in  land  to  be  settled  on  the  son  on  his  mar- 
riage, shall  it  be  deemed  personal  estate,  nor  any  exclusion  (y). 

What  has  been  already  stated  in  general  cases  (z)  respecting 
small  presents  made  to  the  child  by  the  father  ;  his  disbursements 
for  the  child's  maintenance  and  education,  or  placing  him  out  ap- 
prentice («) ;  a  legacy  left  him  by  the  father  dying  partially  intes- 
[397]  tate  (b)  :  property  given  him  by  any  other  than  his  father, 
as  well  as  a  fortune  of  the  child's  own  raising,  is  here  equally  ap- 
plicable. He  is  not  by  any  of  these  means  advanced.  For  that 
purpose  it  must  be  a  provision  made  for  him  by  the  father,  while 
living,  out  of  his  personal  property  (c).  In  short,  there  must,  in 
all  instances  of  this  nature,  be  a  valuable  consideration  moving  from 
the  father,  and  an  actual  benefit  accruing  to  the  child  (d).  Indeed, 
it  has  been  made  a  question  whether  such  provision  as  shall  amount 
to  an  advancement  should  not  be  made  on  marriage,  or  in  pursu- 
ance of  a  marriage  agreement  (e).  But,  it  seems,  the  custom  on 
this  head  is  not  so  restricted,  but  extends  to  any  other  establish- 
ment of  the  child  in  life  {/). 

If  the  child,  whether  the  only  one  or  not,  be  married  in  the  life- 
time of  the  father  with  his  consent,  although  such  child  were  not 
fully  advanced,  yet,  to  entitle  himself  to  further  portion,  he  must 
produce  a  writing  under  his  father's  hand,  expressing  the  value  of 
the  advancement,  in  order  that  it  may  be  ascertained  what  propor- 
tion it  bore  to  his  share  by  the  custom  (g).     If  no  such  writing  be 

(0  4  Burn.  Eccl.  L.  207.  412.  415.   Vid.  Elliot  v.  Collier,  1  Ves. 

(m)  1  Eq.  Ca.  Abr.   150.     Tomkyns  17.      Hearne    v.    Barber,  3  Atk.  213. 

v.  Ladbroke,  2  Ves.  593.  452.  3  P.  Wms.  317.   note  (o).    Elliot 

(10)  1  Ch.  Ca.  160.  235.     L.  of  Test.  v.  Collier,  1  Wits.  168. 
194.     Tiffin  v.  Tiffin,  1  Vern.  2.    Cox         (d)   L.  of  Test.   204.  Jenks  v.  Hol- 

v.  Belitha,  2  P.  Wms.  274.  ford,   1  Vern.  61.     Fowke  v.  Lewen, 

(x)  2  Ch.  Ca.  160.  vid.  Civil  v.  Rich,  89.     Civil  v.  Rich,    216.       Morris     v. 

1  Vern.  216.  Burroughs,  1  Atk.  403.    Elliot  v.  Col- 

(?/)  Annand  v.  Iloneywood,   1  Vern.  lier,  3  Atk.  528. 
345.  (e)  1  Vern.  61.  89.  Vid.  also  Hearne 

(z)  Vid.  supr.  380.  v.  Barber,  3  Atk.  213. 

(«)  Sed  vid.  Morris  v.   Burroughs,   1         (/)  L.  of  Test.  204.  Morris  v.  Bur- 

Atk.  403.  roughs,   1  Atk.  403.     See  also  Northey 

(b)  Vid.  Car  v.  Car,  2  Atk.  227.  v.  Strange,   1  P.  Wms.  342. 

(c)  Laws   of  Lond.    82.     Jenks    v.  (g)  Chace  v.    Box,  Ld.  Raym.  484. 
Holford,    1    Vern.  61.  4  Burn.  Eccl.  E.  1    Eq.    Ca.  Abr.  151.     4  Burn.  Eccl. 


CHAP.   VI.]  BY  THE  CUSTOM  OF  LONDON.  397 

produced;  or  if,  on  the  production  of  such  writing,  the  specific 
amount  does  not  appear  on  the  face  of  it,  such  advancement  shall 
[398]  be  presumed  to  have  been  complete,  till  the  contrary  be 
shewn  (A).  But  mere  parol  declarations  of  the  father,  that  he  had 
fully  advanced  the  child,  whether  with  or  without  a  specification 
of  the  value,  shall  be  of  no  avail  (i). 

Thus,  from  what  has  been- stated,  it  appears,  that  if  a  freeman 
die  intestate,  leaving  no  wife,  and  an  only  child,  whether  the  child 
be  fully  advanced  or  partially  advanced,  or  not  advanced  ;  in  either 
of  the  cases  the  child  was  entitled  to  the  whole  personal  estate  (k). 
If  he  be  fully  advanced,  he  shall  have  nothing  by  the  custom,  but 
shall  have  all  as  next  of  kin  :  If  he  be  partially  advanced,  since  he 
has  no  brother  or  sister,  with  whom  to  bring  his  partial  advance- 
ment into  hotchpot,  he  shall  have  one  half  by  the  custom,  and  the 
other  half  by  the  statute  :  If  he  be  not  advanced,  he  shall  have  one 
half  by  the  custom,   and  the  other  half  by  the  statute  (/). 

If  the  freeman  leave  no  wife,  but  several  children,  as  for  instance 
three,  one  of  whom  is  advanced,  another  partly  advanced,  and  the 
third  not  advanced  ;  in  this  case  the  child  partly  advanced,  and  the 
child  not  advanced,  after  the  former  has  brought  in  his  partial  ad- 
vancement, shall  share  one  half  equally  between  them  by  the  cus- 
tom ;  and  the  other  half,  namely  the  dead  man's  part,  although  the 
first  child  have  been  fully  advanced,  shall,  without  his  bringing  his 
advancement  into  hotchpot,  be  distributed  by  the  statute  equally 
amongst  them  all. 

[399]  If  such  advancement  exceeded  his  orphanage  part,  then, 
whether  the  excess  shall  go  in  satisfaction  of  his  distributive  share 
by  the  statute,  or  not,  seems  to  depend  on  the  provision  being  ex- 
pressly in  satisfaction  of  the  orphanage  part,  or  whether  it  be  gene- 
ral, and  without  any  stipulation  (m). 

The  interest  which  a  child  has  in  such  orphanage  part  is  a  mere 
contingency,  and  no  present  right,  and  therefore  a  release  of  it  is 
not  valid  in  point  of  law  ;  but,  if  founded  on  a  valuable  consideration, 
shall  operate  as  an  agreement,  and  be  binding  in  equity  (n).  There- 
fore, a  freeman's  child,  if  of  age,  may  in  consideration  of  a  present 
fortune,  waive  all  claim  to  the  orphanage  part :  as  where  the  father, 
on  the  marriage  of  his  daughter  who  had  attained  twenty-one  years, 
agreed  to  give  her  three  thousand  pounds,  and  she  covenanted  to 
receive  that  sum  in  full  of  such  share  :  this,  as  there  was  no  fraud 
in  the  transaction,  was  held  in  equity  to  be  a  good  bar  of  the  cus- 

L.  393.    L.   of  Test.    203.     Hume  v.  P.  Wms.   527.     Fawkner  v.  Watts,  1 

Edwards,  3  Atk.  451,  452.     Elliot  v.  Atk.  407. 

Collier,  527.  Fawkner  v.  Watts,  1  Atk.  (.k)  Vid.  4  Burn.  Eccl.  L.  417. 

406.  (/)  Vid.  4  Burn.  Eccl.  L.  417. 

(h)  Cleaver  v.  Spurling,   2  P.  Wins.  (m)  Vid.  sttpr.  395. 

527.     4  Burn.  Eccl.  L.  408.    in  note.  (/')  Blunden  v.  Barker,   1  P.    Wins. 

Elliot  v.  Collier,  3  Atk.  527.  636.  639.     Cox  v.  Bclitha,  2  P.   Wins, 

(j)    Vid.    Blunden  v.  Barker,    1  P.  273. 
Wms.    634.     Cleaver    v,    Spurling,     2 


399  RELEASE  OF  CUSTOMARY  SHARE.       [BOOK  III. 

lorn  (o).  So  if  A.,  who  is  of  age,  marry  a  freeman's  daughter,  who 
is  an  infant,  he  may,  on  receiving  an  adequate  portion,  harJiimself 
of  any  future  right  to  a  customary  estate  in  virtue  of  the  marriage 
by  a  release  of  all  future  right,  or  by  a  covenant  to  release  it  when 
it  shall  acccrue  (p).  Indeed,  if  the  latter  mode  be  adopted,  the 
wife,  if  under  age,  would  not  be  barred  by  the  covenant  ;  and  in 
case  of  his  death  before  the  execution"  of  the  release,  she  would  by 
[400]  survivorship  be  entitled  to  the  share,  as  a  chose  in  action  not 
recovered  or  received  by  her  husband  ;  but  if  he  be  living  when 
the  right  accrues,  as  he  clearly  may  release  it,  and  his  release  will 
bind  her,  therefore  it  is  reasonable  he  should  perform  his  covenant. 
It  is  highly  expedient  that  articles  of  this  nature  should  be  carried 
into  execution  ;  and  that,  when  the  father  is  bountiful  to  his  chil- 
dren in  his  lifetime,  he  should  have  his  affairs  settled  to  his  satis- 
faction at  his  death  (q).  But  such  release  shall  be  altogether  inef- 
fectual if  in  any  manner  extorted,  or  obtained  by  undue  influence  (r), 
or  without  consideration  (s). 

These  points  are  indeed  less  likely  to  occur,  in  consequence  of  the 
authority  given  to  a  freeman  by  the  above  mentioned  stat.  Geo.  1. 
of  disposing  by  will  of  his  whole  personal  estate,  without  regard  to 
the  custom. 


Sect.   III. 
Of  distribution  by  the  custom  of  York — and  of  Wales. 

The  custom  of  York,  as  it  regards  the  widow,  varies  from  that 
of  London  only  in  this  respect,  that  she  is  allowed  to  reserve  to  her 
own  use  not  only  her  apparel  and  furniture  of  her  chamber,  but  al- 
[401]  so  a  coffer  box  containing  various  ornaments  of  her  person, 
as  jewels,  chains,  and  other  articles  of  the  like  nature  («). 

As  relative  to  children,  the  custom  of  York  differs  in  two  mate- 
rial points  from  the  custom  of  London.  In  the  city,  as  we  have 
seen,  a  child's  orphanage  part  is  fully  vested  till  he  attains  the  age 
of  twenty-one.  In  the  province  it  is  vested  immediately  on  the 
death  of  the  intestate  (6).  In  the  city,  we  may  remember,  the  ad- 
vancement of  a  child  cannot  arise  out  of  a  real  estate.      In  the  pro- 

(o)  2  Eq.  Ca.  Abr.  272.  Lockyer  v.  ris"V.  Burroughs,  402.   Heron  v.  Heron, 

Savage,  Stra.  947.  2  Atk.  161.     Blunden  v.  Barker,    1  IV 

( p)  Cox  v.  Belitha,  2  P.  Wins.   272.  Wms.  639.    Cox  v.  Belitha,  2  P.  Wins 

Ives  v.   Medcalf,   1  Atk.  63.  273. 

(7)  Ibid.  1  Atk.  63.  (a)  Of]'.  Ex.  Suppl.  61,  62.      Swinb. 

(>•)    Heron    v.    Heron,  2  'Atk.    160.  p.  6.  s.  9. 
Blunden  v.  Barked    1  P.  Wms.  639.  (/>)  2  Bl.  Com.  519,     4  Burn.  Eccl. 

(s)  Ives  v.  Medcalf,  1  Atk.  63,   Mor-  L,  398. 


CHAP.  VI.]  •  OF  DISTRIBUTION.  401 

vince  the  heir  at  common  law,  who  inherits  any  land  either  in  fee 
or  in  tail,  is  divested  of  all  claim  to  any  filial  portion  (c).  And, 
however  small  in  point  of  value  the  land  may  he  in  comparison  with 
the  personal  estate,  he  is  nevertheless  excluded  (d),  and  even  al- 
though the  estate  he  inherits  he  only  a  reversion  (e).  He  is  also 
barred,  though  the  land  devolved  upon  him  by  settlement  made  on 
his  father's  marriage  (/).  Nor,  in  case  lands  held  by  a  mortgage 
in  fee  descend  to  him  before  redemption,  shall  he  be  entitled  to  a  fili- 
al portion;  but  on  redemption  of  the  mortgage,  and  payment  of  the 
[402]  money  to  the  administrator,  it  seems  he  shall  be  entitled  to 
such  portion,  because  then  he  has  nothing  by  inheritance,  nor  in 
fact  has  had  any  preferment  (g). 

The  principles  established  in  regard  to  advancement  on  the  con- 
struction of  the  statute  of  distributions  apply  in  general  to  such  as 
is  pursuant  to  the  custom  of  this  district  (h)  ;  but  as  here  land  as 
well  as  money  constitutes  an  advancement,  the  heir  at  law  under 
the  custom  is  excluded  by  his  inheritance  of  land,  either  in  fee  or 
in  tail  (i) :  whereas  such  inheritance  is  no  bar  by  the  statute  ;  but, 
as  well  under  the  custom  as  under  the  statute,  younger  children  in 
respect  to  advancement  are  on  the  same  footing.  It  is  essential  in 
order  to  the  custom  of  York's  attaching,  that  the  intestate  should  be 
resident,  at  the  time  of  his  death,  within  the  province  ;  but  for  that 
purpose  it  is  immaterial  where  his  estate  is  situated. 

In  case  a  freeman  of  London  shall  die  within  the  province,  the 
custom  of  the  city  for  the  distribution  of  his  effects  shall  prevail, 
and  shall  controul  the  custom  of  the  province  of  York.  Therefore 
in  that  case  the  heir  shall  come  in  for  a  share  of  the  personal  estate; 
for  the  custom  of  the  province  is  only  local,  and  circumscribed  to  a 
certain  district ;  but  that  of  London,  as  above  stated,  follows  the 
person,  although  ever  so  remote  from  the  city  (k)A 

[403]  With  these  distinctions  the  custom  of  London  and  those 
of  York  in  the  main  agree,  and  appear  to  be  substantially  the 
same  (/). 

Thus,  if  an  intestate  in  the  province  of  York  die  seized  of  an  es- 
tate in  fee-simple,  leaving  a  widow  and  three  sons  ;  the  widow  in 
that  case  shall  have  one  third  of  the  whole  personal  estate  under 
the  custom,  the  other  third  shall  be  divided  equally  between  the 
two  younger  sons,  and  of  the  remaining  third  the  widow  shall  take 
one  third  under  the  statute,  and  the  other  two  thirds  shall  be  divid- 

(c)  2  Burn.  Eccl.  L.  409.  L.  of  Test  (i)  Constable  v.  Constable,   2  Vern. 

221.     Constable  v.  Constable,  2  Vern.  375. 

375.  (/.•)  4  Hum.  Eccl.  L.  446.  Chomley 

(f/)  4  Burn.  Eccl.  L.  409.  v.    Chomley.  2  Vern.    47.   82.     Supr. 

(e)  Ibid.  409,  410.  391. 

(  f)  Ibid.  410.     Constable    v.    Con  (/)  2  Bl.  Com.  519.    1 'Vern.  15.  134. 

stable,  2  Vern.  375.  200.  305.  432.  465.     2  Ch.  Rep.  255. 

(g)  4  Burn.  Eccl.  L.  410.  L.  of  Test.    221 ,   222.     Swinb.  p.  3.  s. 

(A)  Vid.  Elliot  v.  Collier,   1  Yes.  17.  16.     1  Burn,  Eccl.  L.  398,  et  seq. 


403  OF  DISTRIBUTION.  [BOOK    III. 

ed  equally  among  the  three  sons;  for  the  heir  is  barred  merely  of 
his  orphanage  part,  but  not  of  his  share  by  the  statute. 

In  respect  to  Wales  (aw),  we  may  learn  in  general  from  the  stat. 
7  and  8  W.  3.  c.  38.  above  referred  to  (n),  that  the  doctrine  of  the 
pars  rationabilis  extends  to  intestates'  effects  within  that  princi- 
pality ;  but  the  books  contain  no  further  information  on  the  subject. 

(m)  4  Burn.  Eccl.  L.  424.     Off.  Ex.         («)  Supr.  388. 
97,  in  note.  ibid.  Suppl.  72. 


[     404     ] 


CHAP.  VII. 

OP    THE    POWERS     AND    DUTIES    OF    LIMITED  ADMINISTRATORS — OF 
JOINT  ADMINISTRATORS. 

There  are  certain  powers  and  duties  which  helong  in  common 
to  all  special  and  limited  administrators.  Whether  the  administra- 
tion be  committed  durante  minoritate,  durante  absentia,  or  pen- 
dente lite,  or  whether  such  special  and  limited  administration  be 
granted  with  or  without  a  will  annexed,  or  in  a  general  or  restric- 
tive form  only,  as  ad  usum  et  commodum  injantis  ;  they  are  all 
invested  in  some  respects  with  the  same  authority  {a).  They  may 
perform  all  such  acts  as  cannot  be  delayed  without  prejudice  or  dan- 
ger to  the  estate.  They  may  sell  bona  peritura,  cattle  which  are 
fattened,  grain,  fruit,  or  any  other  substance  which  may  be  the 
worse  for  keeping  (6) :  They  may  pay  debts  which  were  due  from 
the  deceased  at  the  time  of  his  death  (<■),  or  for  the  payment  of  them 
they  may  dispose  of  effects  not  perishable  (d).  They  may  also  in 
[405]  suchrespective  characters  receivedebts  due  to  the  deceased  (e), 
or  may  maintain  actions  for  the  recovery  of  the  same  (f)  :  for, 
in  all  these  and  the  like  instances,  the  urgency  of  the  case  requires 
them  immediately  to  act.  They  have  also,  it  seems,  the  privilege 
of  retaining  for  debts  owing  to  themselves  (g). 

If  administration  be  granted  generally  during  infancy,  the  gran- 
tee has  authority  to  make  leases  of  any  term  vested  in  the  infant 
executor,  which  shall  be  good  till  he  come  of  age,  and,  as  it  has 
been  also  held,  till  he  enter  (A).  Such  administrator  has  also,  it 
seems,  a  right,  in  case  the  administration  were  granted  with  the 
will  annexed,  to  assent  to  a  legacy  (i).  But  if  the  administration 
were  committed  with  special  words  of  restrain!  in  the  form  I  have 
just  mentioned,  such  administrator  is  incapable  of  making  leases  (#), 

(a)  Walker  v.  Woollaston,  2  P.  Wms.  3  Leon.  103. 

576.  (/)    Walker    v.    Woolaston,    2    P. 

(6)  3  Bac.  Abr.  13.  11  Vin.Abr.  102,  Wms.  576.      1  Poll.   Abr.  888.     Bear- 

103.   1  Roll.  Abr.  910.  Anon.  3  Leon,  block  v.  Read,  2  Brownl.  83.  Slaugb- 

278.     2  Anders.  132.  pi.  78.     Price  v.  ter  v.  May,  1  Sulk.  42.     Ball  v.  Oliver, 

Simpson,  Cro.   Eliz.   718.      5    Co.    9.  2  Ves.  and  Bea.  97. 

Godb.  104.  (g)    Com.    Dig-.    Admon.   F.   Semb. 

(c)  Com.  Dig-.  Admon.  F.  Vid.  Briers  Raym.  483. 

v.  Goddard,  Hob.  250.  5  Co.  29  b.  (A)  6  Co.  67.  b.  Off".  Ex.  215. 

(d)  5  Co.  29  b.    2  Anders.  132.  pi.         (i)  Off.  Ex.  215.  5  Co.  29  b. 


(t)  Com.  Dig".  Admon.  F.  Vid.  Anon. 


(A-)  6  Co.  67  b.  Off'.  F.x.  215. 


405  OF  LIMITED   ADMINISTRATORS.  [BOOK  III, 

or  of  assenting  to  a  legacy  (/).  Nor  shall  the  power  of  an  adminis- 
trator during  infancy,  although  the  grant  were  general,  extend  to 
the  prejudice  of  the  infant.  Therefore  such  administrator  has  no 
authority  to  transfer  the  property  by  sale,  except  in  cases  of  neces- 
sity ;  nor  to  sell  leases  even  for  the  payment  of  debts,  if  there  be 
[406]  other  property  which  he  may  dispose  of  to  more  advan- 
tage (m)  ;  nor  to  assent  to  a  legacy,  unless  there  be  assets  for  its 
payment  (n);  nor  to  release  a  debt  without  actually  receiving  it  (o): 
for  although,  as  we  may  remember,  if  A.  an  infant  be  appointed 
executor,  and  B.  be  nominated  to  act  in  that  character  during  A.'s 
minority,  B.  seems  to  be  possessed  of  the  same  powers  as  an  abso- 
lute executor  (p)  ;  yet  a  distinction  has  been  taken  between  him 
and  an  administrator  durante  minoritate.  To  B.  the  property  in 
the  effects  was  confided  by  the  owner  himself,  though  but  for  a 
limited  time,  and  in  a  special  manner;  whereas  such  administrator 
is  appointed  by  the  ordinary  in  consequence  of  the  legal  disability 
of  the  executor,  who  by  the  will  is  constituted  to  act  immediate- 
ly (q).  Such  acts,  therefore,  as  are  performed  by  such  administra- 
tor to  the  injury  of  the  infant,  shall  be  altogether  ineffectual. 

By  the  star.  38  Geo.  3.  c.  S7.  s.  7.  an  administrator  durante  ab- 
sentia has*  the  same  powers  vested  in 'him  as  an  administrator  dur- 
ing the  minority  of  the  next  of  kin. 

An  administrator  pendente  lite,  whether  the  suit  relates  to  a  will 
or  the  right  of  administration,  seems  to  be  on  the  same  footing  as 
an  administrator  during  infancy,  to  whom  the  grant  is  made  in  the 
[407]  special  and  limited  manner  above  mentioned  (r). 

On  an  infant  executor's  coming  of  age,  he  may  sue  out  a  scire  fa- 
cias on  a  judgment  recovered  by  the  administrator  durante  mino- 
ritate. In  like  manner,  in  case  an  administrator,  pendente  lite 
touching  a  will,  obtain  such  judgment,  the  executor,  on  proving 
the  will,  by  which  the  administration  will  be  determined,  may  take 
advantage  of  the  judgment  by  scire  facias  (s). 

If  an  action  be  brought  against  a  special  administrator,  and, 
pending  the  action,  the  administration  determine,  it  has  been  hel-d 
he  ought  to  retain  assets  to  satisfy  the  debt,  which  is  attached  on 
him  by  the  action  (/);  but  that  is  on  the  supposition  the  action  does 
not  in  that  event  abate  ;  whereas  it  seems  that  such  would  be  the 
consequence  («)•  0)  If  judgment  be  obtained  against  such  admin- 

(/)  OfT".  Ex.  215.  Abr.  106.   Walker  v.  Woolas'ton,  2  P. 

(m)  2  Anders.  132.  pi.  78.  Wins.  576.  and  supr.  74. 

(??)  5  Co.  29  b.  (.<•)  lb.  2  P.  Wins.  587. 

{,,)   1  Roll.  Abr.  910.911.  (/)  3  Bac.  Abr.  14.  Sparks  v.  Crofts, 

(p)  Vid.  supr  357.  Comb.  465. 

(a)  Oil'.  Ex.  215,  216.    11  Yin.  Abr.  (u)  11  Yin.  Abr.  97.    Ford  v.   (.Ian 

103.  ville,  Moore,  462.    tjoldsb,     13  Lutw 

O)  Vid.  3   Bac.  Abr.    56.  11    Yin.     342. 


(1)   Tfie  State,  use,  &c.  v.  Craddoclc,  7  Ilarr.  5c  Johns.  40. 


CHAP.   VII.]  OF  JOINT   ADMINISTRATORS.  407 

istrator,  and  .afterwards  the  executor  come  of  age,  a  scire  facias 
will  clearly  lie  against  the  executor  on  the  judgment  (to). 

Of  co-executors,  we  have  seen  (.?■),  the  acts  of  any  one  in  respect 
to  the  administration  of  the  effects  are  deemed  by  the  law  to  be 
the  acts  of  all,  inasmuch  as  they  have  a  joint  and  entire  authority 
over  the  whole  property  ;  but  joint  administrators  have  been  con- 
sidered in  a  different  light.  Their  power  arises  not  from  the  act 
of  the  deceased,  but  from  tjfat  of  the  ordinary;  and  administration, 
it  has  been  already  stated  (,y),  is  in  the  nature  of  an  office.  Hence 
it  has  been  held,  that  if  granted  to  severpl  persons,  they  must  all 
join  in  the  execution  of  it,  nor  shall  the  act  of  one  only  be  bind- 
ing on  the  rest,  and  that  therefore  one  of  several  administrators 
f  IOS]  cannot,  like  one  of  several  co-executors,  convey  an  interest, 
or  release  a  debt,  without  the  others  (c).  But  this  distinction  has 
been  overruled,  and  it  seems  to  be  now  settled  that  a  joint  admi- 
nistrator stands  on  the  same  footing,  and  is  invested  with  the  same 
powers,  as  a  co-executor  (a),  (l) 

If  one  of  the  administrators  die,  the  right  of  administering  will 
survive  without  a  new  grant  (b). 

By  the  stat.  38  Geo.  3.  c.  87.  s.  4.  in  case  of  the  absence  of 
an  executor  for  a  year  after  the  testator's  death  out  of  the  jurisdic- 
tion of  his  majesty's  courts,  and  a  suit  be  instituted  in  a  court  of 
equity  by  a  creditor,  the  court  in  which  the  suit  shall  be  pending 
is  empowered  to  appoint  persons  to  collect  outstanding  debts  or 
effects  due  to  the  testator's  estate,  and  to  give  discharges  for  the 
same,  who  are  to  give  security  in  the  usual  manner  duly  to  ac- 
count. 

(a?)    Sparks  v.   Crofts,    Ld.   Raym.  1  Atk.  460. 

265.   S.  C.  Carth.  432.  (ft)  Jacomb  v.  Harvvood,  2  Ves.  267. 

(x)  Supr.  359.  Willand  v.  Fenn  in  B.  R.  cited  ibid. 

(y)  Supr.  114.  (b)  Adams    v.    Buckland,    2    Vern. 

(z)  4  Burn.  Eccl.  L.  272.     Ld.  Ba-  514.     Eyre  v.  Countess  of  Shaftsbury, 

con's  Tracts,  162.    Hudson  v.  Hudson,  2  P.  Wms.  121.    Supr.  114. 

(1)  Murray  v.  Blalchford,  1  Wend.  Rep.  583.  Gage  v.  Johnson's  Mm.  1 
M 'Cord's  Rep.  492. 


35 


[    409    ] 


CHAP.   VIII. 

OP  ASSETS    AS    DISTINGtjfsHED    INTO    REAL    AND    PERSONAL,  LEGAL 
AND    EQUITABLE — OP    MARSHALLING  ASSETS. 

In  treating  of  debts  and  legacies,  I  have  hitherto  supposed  them 
to  be  payable  out  of  the  personal  estate  only,  and  indeed  that  is 
the  natural  fund  for  their  satisfaction  ;  but  the  real  property  may 
also  be  applied  to  the  same  purpose. 

On  the  subject  of  such  application,  it  is  necessary  to  consider 
assets  under  different  denominations.  Assets,  then,  are  either  real 
or  personal,  legal  or  equitable  (a). 

Those  of  which  I  have  been  treating  are  legal  and  personal. 

I  proceed  now  to  advert  to  such  as  are  legal  and  real.  Lands 
descended  to  the  heir  in  fee-simple  are  for  the  benefit  of  specialty 
creditors  of  this  description  ;  as  is  even  an  advowson  which  is  so 
descended  (6). 

These  assets  are  sometimes  styled  assets  by  descent,  as  personal 
[410]  assets  are  called  assets  enter  mains,  that  is,  in  the  hands  of 
the  executor  (c). 

Whether  an  estate  pur  aider  vie,  in  case  it  be  not  devised,  shall 
be  real  or  personal  assets,  depends  on  there  being  or  not  being  a 
special  occupant.  The  statute  of  frauds  enables  the  proprietor  of 
such  estate  to  devise  it,  and  enacts  that,  if  no  devise  be  made,  it 
shall  be  chargeable  in  the  hands  of  the  heir,  if  it  come  to  him  by 
reason  of  a  special  occupancy,  as  assets  by  descent,  as  in  the  case  of 
lands  in  fee-simple.  And  if  there  be  no  special  occupant,  it  shall 
go  to  the  executor,  and  be  assets  in  his  hands  (d). 

A  term  in  gross  is,  as  we  have  seen,  personal  assets  (e).  But  if 
the  term  be  vested  in  a  trustee,  and  attendant  on  the  inheritance, 
it  is  real  assets  {/).  So  a  term  in  trust,  attendant  on  a  fee  in  trust, 
shall  be  real  assets  in  the  hands  of  the  heir  ;  for  the  statute  of  frauds 
having  made  a  trust  in  fee  assets  in  the  hands  of  the  heir,  the 
term  which  follows  the   inheritance,  and  which  is  subject  to   all 

(a)  Vid.  4  Burn.  Eccl.  L.  288.  Westfaling  v.  Westfaling,  3  Atk.  466. 

(b)  3  Wooddes.  483.  Robinson  v.  Atkinson  v.  Baker,  4  Term  Rep.  229. 
Tong-e,  3  P.  Wms.  401.  Milner  v.  Lord  Harewood,  18  Ves.  273. 

(c)  Terms  of  the  Law,  Shep.  Touchst.         (e)  Supr.  140. 

496.  (/)  2  Fonbl.  2d  edit.   114.  note   R. 

(d)  2  Fonbl.  2d  edit.  896.  not.  R.  b.     Vid.  supr.  5  and  137. 


CHAP.   VIII. ]      REAL  AND  PERSONAL  ASSETS.  410 

charges  attending  the  inheritance,  must  be  so  also  (g).  But  we  have 
seen,  that,  generally  speaking,  the  trust  of  a  term  is  not  made  as- 
sets by  that  statute  (h). 

[411]  Creditors  by  specialties,  which  affected' the  heir,  provid- 
ed he  had  assets  by  descent,  had  not^the  same  remedy  against  the 
devisee  of  their  debtor,  and  were  therefore  liable  to  be  defrauded 
of  their  securities.  To  obviate  this  mischief  (z),  the  stat.  3  W.  and 
M.  c.  14.  has  enacted,  that  all  devises  of  real  estates  by  tenants 
in  fee-simple,  or  having  power  to  dispose  by  will,  shall,  as  against 
such  creditors,  be  deemed  to  be  fraudulent  and  void;  and  that  they 
may  maintain  their  actions  jointly  against  the  heir  and  devisee. 
But  devises  for  payment  of  debts,  and  for  raising  portions  for 
younger  children,  in  pursuance  of  an  agreement  before  marriage, 
are  expressly  excepted  by  the  statute  (k).  And  thus  freehold  in- 
terests devised  for  other  than  the  just  purposes  aforesaid,  are  be- 
come, in  favour  of  specialty  creditors,  real  assets  at  law,  without 
the  assistance  of  a  court  of  eq.uity  :  in  respect  to  which  such  cre- 
ditors may  elect  to  resort  in  the  first  instance  against  the  heir  and 
devisee,  without  suing  the  personal  representative  of  their  deceased 
debtor  (/).  If  such  creditor  file  a  bill  in  equity  on  the  statute  to 
affect  the  real  assets  in  the  hands  of  the  devisee,  the  heir  must  be 
made  a  party  to  the  suit ;  for  a  bill  in  equity  for  that  purpose  is  in 
the  nature  of  an  action  at  law  ;  and  as  the  action  by  express  provi- 
sion of  the  statute  is  to  be  brought  jointly  against  the  heir  and  de- 
visee, so  the  bill  must  be  filed  against  them  both  (rn)  ;  though  in 
such  case  the  heir  or  devisee  shall  have  this  relief — namely,  to 
stand  in  the  place  of  the  specialty  creditor,  and  reimburse  himself 
out  of  the  personal  estate  («).  (1) 

It  seems  that  an  estate  pur  aider  vie,  although  no  special  occu- 
pant were  named,  would,  in  case  it  were  devised,  be  considered  as 
real  assets  (o). 

But  copyhold  estates  are  not  assets  in  the  hands  of  the  heir(/>), 

(g)  2  Fonbl.  2d  edit.   114.  note  S.  well,  2   Atk.   125.    Madox  v.  Jaskson, 

Herd.  489.  Willoughby  v.  Willoughby,  3  Atk.  406.     Knight  v.   Knight,    3  P. 

1  Term  Rep.  766.  Wms.  333.     Vid.   Manaton  v.  Manaton, 

(h)  Supr.  143.  2  P.  Wms.  234. 

(t)  Vid.  2  Bl.  Com.  378.  O)    Gawler  v.  Wade,    1   P.   Wms. 

(k)   Vid.  2  Atk.  .104,  292.    Earl  of  99. 
Bath  v.  Earl  of  Bradford,  2  Ves.  590.         (n)  Clifton  "v.  Burt,  1  P.  Wms.  680. 
JLingard  v.  Earl  of  Derby,   1  Bro.  Ch.         (o)  Vid.   2  Fonbl.  2d  edit.  396.  note 

Rep.  311.     Hughes  v.  Doulben,  2  Bro.  b. 
Ch.  Rep.  614.     Com.  Dig.  Assets  A.  (p)  4  Co.  22.     Robinson   v.   Tonge, 

(/)  3  Wooddes.  486.  Warren  v.  Stat-  cited  1  P.  Wms.  679.  note  1. 


(1)  In  Pennsylvania,  when  a  suit  is  brought  against  executors,  the  heirs  of 
the  testator,  to  whom  land  has  descended,  have  a  right  to  appear  and  take  de- 
fence in  the  name  of  the  executors,  and  thus  protect  their  interest  in  the  lands, 
which  are  assets  for  the  payment  of  debts.  Fritz,  Ex.  v.  Leans,  JlJm.  13  Serg. 
&  Rawle,  1. 


412  LEGAL  AND  EQUITABLE  ASSETS.    [BOOK  III. 

f412]  and  consequently  are  not  comprehended   within  the  provi- 
sions of  this  statute. 

Between  legal  and  equitable  assets  the  distinction  is  this  :  legal 
assets  are  such  as  constitute  the  fund  for  the  payment  of  debts  ac- 
cording to  their  legal  priority  ;  whereas  equitable  assets  are  those 
which  can  be  reached  only  by  the  aid  of  a  court  of  equity,  (1)  and 
are  subject  to  distribution  on  equitable  principles,  according  to 
which,  as  equity  favours  equality,  they  are  to  be  divided  pari 
passu  among  all  the  creditors  (q). 

By  the  stat.  21  H.  8.  c.  5.  s.  5.  it  is  enacted  that  if  lands  are 
devised  to  be  sold,  neither  the  money  produced  by  the  sale,  nor 
the  future  profits  of  the  land,  shall  be  considered  as  forming  any 
part  of  the  personal  estate  of  the  devisor.  But  this  provision  was 
formerly  construed  to  apply  merely  to  devises  of  lands  to  be  sold 
by  persons  not  executors,  or  by  executors  in  conjunction  with 
other  persons  ;  in  which  cases  it  was  held,  that  neither  the  land 
nor  the  money  was  to  be  regarded  as  legal  assets,  but  merely  sub- 
ject to  an  equitable  appointment,  inasmuch  as  the  parties  empowered 
to  sell  were  not  trusted  with  it  in  respect  of  their  executorship  (r). 
[413]  That  in  case  lands  were  devised  to  an  executor,  to  be 
sold  by  him  in  that  capacity  for  the  payment  of  debts  and  legacies, 
the  money  arising  from  the  sale  should  be  legal  assets  as  well  as 
the  intermediate  profits  ;  for  that  by  the  devise  the  descent  was 
broken,  and  the  estate  in  the  land  vested  in  the  executor,  qua 
executor  for  the  purposes  directed  by  the  will  (s).  (2) 

But  the  doctrine  of  equitable  assets,  in  its  principle  so  conso- 
nant to  natural  justice,  has  been  gradually  extended  ;  and  this  dis- 
tinction between  a  devise  to  a  trustee  and  to  an  executor  has  been 
continually  qualified,  till  at  length  it  appears  to  be  altogether  abol- 
ished. 

In  one  class  of  cases,  both  of  an  earlier  and  of  a  later  date,  courts  of 
equity  recognizing  the  union  of  the  two  characters  of  trustee  and 
executor  in  the  devisee,  regarded  on  that  ground  the  real  estate 

(7)  3  Bac.  Abr.  59.  in  note.  2  Fonbl.  63.  Anon.  2  Vern.  405.  4  Burn.  Eccl. 

402.    note   (d).  4  Burn.    Eccl.  L.   288.  L.  260.    11  Vin.  Abr.  291.    Cuiterback 

3   Wooddes.  486.  2  P.  Wins.  416.  note  v.   Smith,  Free.    Chan.  127.     Sed  vid. 

2.  Oft".  Ex.  74,  75. 

0)  3  Bac.  Abr.  58.   Roll.  Abr.   920.  O)    3   Bac.   Abr.    58.     1  Roll.  Abr. 

Edwards  v.  Graves,    Hob.   265.   Dyer.  920.   Ilargr.  Co.  Litt.  236. 
151  b.  264  1).   Girling-  v.  Lee,   1   Vern. 


(1)  Rutledge  v.  Riitledge's  Creditors,   1  M'Cord's  Clia.  Rep.  469. 

(2)  Tegtator  orders  his  executors,  after  the  death  of  his  widow,  to  sell  his  real 
and  personal  estate,  and  divide  the  money  equally  among-  his  four  children.  On 
a  sale  Of  the  land  made  by  an  administrator  dc  bouts  lion,  after  the  death  of  the 
widow,  such  administrator  is  entitled  to  receive  the  money,  and  not  a  creditor 
who  had  obtained  judgment  against  one  of  the  children  before  a  sale.  Allison, 
Ex.\.  Wikon'i   r',     13  Ssrg.  &  Rawle,  330. 


CHAP.  VIII.]    LEGAL  AND  EQUITABLE  ASSETS.  413 

as  merely  a  trust  fund,  and  distributable  among  all  tbe  creditors 
equally  (I).  And  other  cases  considered  it  in  the  same  light,  although 
the  devise  were  not  to  the  executor  expressly  on  trust,  if,  according 
to  the  sound  construction  of  the  will,  he  might  be  converted  into  u 
trustee  ;  as  if  the  devise  were  to  him  and  his  heirs  ;  since  the  mo- 
ney could  never  be  legal  assets  in  the  hands  of  his  heir  ;  nor,  as 
[414]  against  such  heir,  could  an  action  be  maintained  by  a  credi- 
tor (m). 

According  to  other  decisions,  if  the  executor  had  only  a  naked 
power  to  sell  in  the  capacity  of  executor,  the  lands  descended  in  the 
mean  time  to  the  heir  of  the  devisor,  and  till  the  sale,  he  might 
enter  and  take  the  profits  (w)j  (1)  and  the  money  arising  from  such 
sale  was  held  to  be  assets  at  law  (#). 

But  by  modern  adjudications  it  seems  to  be  established  that  a 
devise  to  a  mere  executor  shall  bear  the  same  construction  as  a  de- 
vise to  a  trustee  ;  that  there  is  no  reason  to  suppose  the  testator's 
meaning  to  be  different  in  the  one  instance  from  that  in  the  other; 
and  that,  even  in  the  case  of  a  mere  power  on  the  part  of  the  exe- 
cutor to  sell,  the  descent  seems  to  be  broken,  inasmuch  as  the  ven- 
dee is  in  by  the  devisor  ;  but  that,  whether  the  descent  in  such 
case  be  broken  or  not,  the  assets  shall  be  equally  equitable:  in  short, 
that  if  the  real  estate  be  by  any  means  given  to  the  executor,  tbe 
produce  of  it,  when  sold,  shall  not  be  applied  in  a  course  of  legal  ad- 
ministration, but  be  distributed  as  equity  prescribes  (y).  (2) 

And  although  it  has  been  held  that  where  the  estate  descends  to 
[415]  the  heir  charged  with  the  payment  of  debts,  it  will  be  legal 
assets  in  him  {z) ;  yet  now  it  is  settled  that  in  this  instance  also  the 
assets  shall  be  deemed  to  be  equitable  («). 

But  such  assets  as  are  clearly  legal  shall  not  assume,  by  being 

(t)  2  P.  Wms.  416.  note  2.  2  Fonbl.  (y)  Newton  v.  Bennet,  1  Bro.  Ch. 

402,  403.    Anon.  2  Vern.  133.     Challis  Rep.  137,  138.    2  Fonbl.  2d  edit.  398. 

v.  Casborne,  Prec.  Chan.  408.  Cham-  in  note.    Vide   Hargr.   Co.   Litt.    113. 

bers  v.  Harvest,  Mose..  123.  Anon.  328.  note  2.  and   Walker  v.  Meaner,  2  P. 

Lewin  v.  Okeley,  2  Atk.  50.     Batson  Wms.  552. 

v.  Lindegreen,   2  Bro.  Ch.  Rep.  94.  (z)  Freemonlt  v.  Dedire,  1  P.  Wms, 

(«)  1  Bro.  Ch.  Rep.  Append.    7.     1  430.     Pluriket  v.  Penson,  2  Atk.  29U, 

Bro.  Ch.    Rep.      Newton    v.    Bennet,  2  P.  Wms.  416.  note  2. 

135,  138.  in  note.  («)  2  Fonbl.  2d  edit.  398.  in  note.   1 

(w)  Co.  Litt.  236.  Bro.  Ch.   Rep.  Append.  6.     Batson  v. 

(x)   Newton  v.  Bennet,  1  Bro.  Ch.  Lindegreen,     2    Bro.    Ch.    Rep.    94. 

Rep.  135,  138.  in  note.     See  Tomlin-  Shiphard  v.  Lutwidg-e,  8  Ves.  jun.  26. 

son  v.  Dighton,  1  P.  Wms.  151. 


(1)  In  Pennsylvania,  under  the  provisions  of  the  Act  of  31st  March,  1792, 
(Purd.  Dig.  277.  3  Sm.  Laws,  67.)  the  executors,  where  a  naked  power  to  sell 
is  given  to  them,  take  the  legal  estate,  and  nothing-  descends,  unless  the  contrary 
is  specially  directed  by  the  testator.  Allison,  Ex.  v.  ffikon's  Ex.  13  Serg\  k. 
Rawle,  332. 

(2)  Nimino\i  Ex  v.  The  Commonwealth,  4  Hen.  &  Munf,  17  Benson  v.  he 
Roy,   3  Johns.  Cha.  Rep.  651. 


415  LEGAL  AND  EQUITABLE  ASSETS.        [BOOK   III. 

recoverable  only  in  equity,  an  equitable  nature.  Hence,  if  a  mere 
trust  estate  descend  on  the  heir  at  law,  notwithstanding  a  necessity 
of  resorting  to  equity  to  reduce  it  into  possession,  yet  it  shall  be 
legal  assets,  since  a  trust  estate  is  .made  assets  by  the  statute  of 
frauds.  And  although  an  equity  of  redemption  of  a  mortgage  in 
fee,  not  being  made  assets  by  any  legislative  provision,  has  been 
considered  as  merely  an  equitable  interest,  and  has  been  expressly 
adjudged  to  be  equitable  assets  (b)  ;  (1)  yet  there  are  strong  opinions 
to  the  contrary,  and  that  an  equity  of  redemption,  even  in  fee, 
though  capable  of  being  reached  only  in  equity,  shall  be  classed 
among  assets  at  law.  And  although,  from  the  same  inclination  of 
extending  the  ideas  of  equitable  assets,  it  has  been  also  held  that  if 
any  termor  for  years  mortgage  his  term,  the  equity  of  redemption 
shall  be  of  that  description  of  assets  (c)  ;  still,  according  to  a  vari- 
ety of  antecedent  cases,  such  chattels,  whether  real  or  personal,  as 
[416]  are  mortgaged  or  pledged  by  the  testator,  and  redeemed  by 
the  executor,  although  capable  of  being  recovered  only  in  equity, 
shall  be  assets  at  law  in  the  hands  of  the  executor  for  the  value  be- 
yond the  sum  paid  for  the  redemption  (d). 

Lands  may  be  devised  to  an  executor  to  be  sold  by  him  for  the 
payment  of  debts  only,  and  then  they  shall  be  assets  merely  for 
that  purpose.  And  so  the  devise  may  be  expressed  to  be  for  the 
payment  of  legacies,  and  not  of  debts  ;  and  then  it  shall  be  restrict- 
ed to  the  former.  For  since  the  lands  are  not  in  their  own  nature 
assets,  but  constituted  so  by  the  will  and  disposition  of  the  devisor, 
they  shall  not  be  assets  to  a  greater  extent  than  he  has  thought  fit 
to  direct (e). 

But  in  either  of  these  cases,  as  I  shall  presently  shew,  the  assets 
may  be  marshalled. 

Where  money  by  a  marriage  agreement  is  articled  to  be  invested 
in  land  and  settled,  such  fund  should  be  bound  by  the  articles,  and 
not  be  assets,  either  at  law  or  in  equity,  for  payment  of  debts  {/). 

(6)  Wilson  v.  Fielding,  2  Vern.  764.  155.  Harcourt  v.  Wrenham, Moore,  858. 

Plunket  v.  Penson,  2  Atk.  294.     Deg  1  Roll.  Rep.  158.  Harcourt  v.  Wrenham, 

v.  Deg,  2  P.  Wms.  416.   Cox's  case,  3  1  Brownl.  76.     Plunket  v.    Penson,    2 

P.  Wms.   342.     Hartvvell  v.    Clutters,  Atk.  291. 

Ambl.  308.     3  Bac.  Abr.  59.  in  note.  (e)  Off.  Ex.  74. 

(c)  Cox's  case,    3    P.    Wms.     342.  (/)  Lechmere  v.   Eai'l  of   Carlisle, 

Hartwell  v.  Chitters,  Ambl.  308.  3  P.  Wms.  217. 

(rf)  3  Bac.  Abr.  59.  in' note.  1  Leon. 


(1)  The  administrator  of  a  mortgagor  is  not,  as  such,  entitled  to  the  surplus 
moneys  arising  from  the  sale  of  the  mortgaged  premises  ;  but  it  is  considered  as 
part  of  the  real  estate,  and  goes  to  the  heirs,  and  will  be  assets  in  their  hands  ; 
and  the  heirs  being  before  the  Court  by  their  parent,  it  was  ordered  to  be  distri- 
buted, as  equitable  assets,  among  all  the  creditors  pari  passu.  But  as  the  creditor 
has  a  remedy  at  law,  in  New  York,  against  an  equity  of  redemption,  it  is  ques- 
tionable, whether  before  a  sale  of  the  mortgaged  premises  it  could  be  deemed 
equitable  assets.    Moses  v.  Murgatroyd,  1  Johns.  Cha.  Rep.  119. 


CHAP.  VIII.]      LEGAL  AND  EQUITABLE  ASSETS.  416 

An  estate  in  fee  in  our  American  plantations  is  subject  to  debts, 
and  considered  as  a  chattel  till  tbe  creditors  are  satisfied,  when  tbe 
lands  shall  descend  to  the  heir  (g). 

By  the  stat.  47  G.  3.  s.  2.  c.  74.  it  is  enacted  that  a  trader 
dying  seised  of,  or  entitled  to,  any  estate,  or  interest  in  lands,  tene- 
ments, hereditaments,  or  other  real  estate,  which  before  the  pass- 
ing of  the  act  would  have  been  assets  for  the  payment  of  his  debts 
due  on  any  specialty  in  which  the  heirs  were  bound,  the  same 
should  be  assets  to  be  administered  in  courts  of  equity,  for  the  pay- 
ment of  all  just  debts  of  such  person,  as  well  debts  due  on  simple 
contract,  as  on  specialty;  but  specialty  debts  are  to  be  first  paid  (A). 

[417]  By  the  stat.  5  G.  2.  c.  7.  §  4.  it  is  enacted  that  houses,  land, 
negroes,  and  other  hereditaments,  and  real  estates  situate  within  any 
of  the  British  plantations  in  America  belonging  to  any  person  in- 
debted, shall  be  liable  to  and  chargeable  with  all  just  debts,  duties, 
and  demands,  of  what  nature  or  kind  soever,  owing  by  any  such 
person  to  his  Majesty,  or  any  of  his  subjects,  and  shall  be  assets 
for  the  satisfaction  thereof  in  like  manner  as  real  estates  are  liable 
to  the  satisfaction  of  debts  due  by  bond,  or  other  specialty,  and 
shall  be  subject  to  the  like  remedies,  proceedings,  and  process  in 
any  court  of  law  or  equity  in  any  of  such  plantations  respectively, 
for  seizing,  extending,  selling,  or  disposing  of  any  such  houses, 
lands,  negroes,  and  other  hereditaments  and  real  estates,  towards 
the  satisfaction  of  any  such  debts,  duties,  and  demands,  and  in  like 
manner  as  personal  estates  in  any  of  the  said  plantations  respec- 
tively are  seised,  extended,  sold,  or  disposed  of  for  the  satisfaction 
of  debts.  (1) 

The  marshalling  of  assets  remains  now  to  be  considered. 

The  personal  assets  of  the  testator  shall  in  all  cases  be  primarily 
applied  in  discharge  of  his  personal  debts  or  general  legacies,  un- 
less he  exempt  them  by  express  words  or  manifest  intention  (/)  ;  a 
declaration  plain,  or  necessary  inference,  tantamount  to  express 
words  (k). 

(g)  11  Vin.  Abr.  223.  Noel  v.  Robin-  v.  French,  Amb.  33.   S.  C.   1  Wils.  82. 

son,  2  Ventr.  358.     Blankard  v.  Galdy,  Samwell  v.  Wake,  1  Bro.  Ch.  Rep.  144. 

4  Mod.    226.     4  Burn.  Eccl.  L.   195.  Duke  of  Ancaster  v.  Mayer,   ib.  454. 

Manning  v.  Spooner,  3  Ves.  jun.  118.  Bamfield  v.   Wyndham,    Prec.  in   Ch. 

(h)  The  above  stat.  applies  only  to  101.  Wainwright  v.  Bendlowes,  2  Vern. 

persons  who  were  traders  at  the  time  of  718.   S.  C.  Amb.  581.    Webb  v.  Jones, 

their  decease  ;  and  not  to  persons  who  2  Bro.  Ch.   Rep.   60.     Vid.  also  3  Bac. 

have  left  off  trade  before  they  died.—  Abr.  85.  2  Fonbl.  290.  note  (a).   Reade 

Hitch  on  v.  Bennet,  4  Madd.  Rep.  180.  v.  Litchfield,  3  Ves.  jun.  475. 

(i)  1  P.  Wms.  294.  note  1.  Heath  v.  (k)  Bootle  v.  Blundell,  1  Meri.  Rep. 

Heath,   2  P.  Wms.   366.      Walker  v.  193.  and  19  Ves.  494.    S.  C.  Greene  v. 

Jackson,  1  Wils.  24.  S.  C.  2  Atk.  624.  Greene,  4  Madd.  Rep.  148.     Gittins  v. 

Rridgman  v.  Dove,  3  Atk.  202.     Hasle-  Steele,   1   Swans.   24.     Tower  v.  Lord 

wood  v.  Pope,  3  P.  Wms.  324.     1  Bro.  Rous,  18  Ves.  132. 
P.  C.  192.  Bunb.  302.    Lord  Inchiquin 

(1)  Lands  descending  in  another  state  are  not  assets  in  Massachusetts.     Austin 
v.  Gage,  9  Mass.  Rop.  395. 


418  OF  MARSHALLING  ASSETS.  [bOOKIII, 

[41 S]  A  devise  of  all  the  real  estate,  subject  to  the  payment  of 
debts,  will  not  alone  exonerate  the  personal  estate  ;  and  even  if  tbe 
testator  direct  tbe  real  estate  to  be  sold  for  tbe  payment  of  debts, 
tbe  personal  estate  shall  be  applied  in  exoneration  of  the  real  (/);  (1) 
and  it  shall  be  thus  applied,  although  the  personal  debt  be  secured 
by  mortgage,  and  whether  there  be  or  be  not  a  bond  or  covenant 
for  payment  (m).  So  lands  subject  to  or  devised  for  payment  of 
debts  shall  be  liable  to  discharge  such  mortgaged  lands  either  de- 
scended or  devised  (n),  and  although  the  mortgaged  lands  be  de- 
vised expressly  subject  to  the  encumbrance  (o).  So  lands  descend- 
ed shall  exonerate  mortgaged  lands  devised  (p).  So  unencumber- 
ed lands  and  mortgaged  lands,  both  specifically  devised,  but  ex- 
pressly after  payment  of  all  debts,  shall  contribute  to  the  dis- 
charge-of  the  mortgage  (q)  :  (2)  In  all  these  cases  the  debt'is  con- 
sidered as  the  personal  debt  of  the  testator  himself,  and  therefore  a 
charge  on  the  real  estate  merely  collateral. 

But  a  different  rule  prevails  where  the  charge  is  on  the  real  es- 
tate principally,  and  the  personal  security  is  only  collateral  (r)  : 
[419]  As  where  a  husband  on  his  marriage  covenants  to  settle 
lands  and  to  raise  a  term  of  years  out  of  them  for  securing  por- 
tions, and  also  gives  a  bond  for  tbe  performance  of  the  covenant ; 
for  in  such  case  the  land-holder  enters  into  such  covenant  relying 
on  the  land  to  enable  him  to  discharge  it  ;  nor  does  the  money 
raised  increase  the  personal  estate,  but  is  to  exonerate  the  rest  of 
bis  real  (s).  So  where  the  debt,  although  personal  in  its  creation, 
was  contracted  originally  by  another  (t)  :    As  where  an  estate  is 

(/)  Fereyes  v.  Robertson,  Bunb.  301.  (r)  Edwards  v.  Freeman,  2  P.  Wins. 
Bond  v.  Simmons,  3  Atk".  20.  Hasle-  437.  664.  in  note.  Ward  v.  Lord  Dud- 
wood  v.  Fope,  3  P.  Wms.  322.  2  Eq.  ley  and  Ward,  2  Bro.  Ch.  Rep.  316. 
Ca.  Abr.  493.  Leman  v.  Newnham,  1  Ves.  51.  Lewis 
•  (wi)Cope  v.  Cope,  2  Salk  449.  How-  v.  Mangle,  Ambl.  150. 
cl  v.  Price,  1  P.  Wms.  291.  Pockley  (s)  2  Fonbl.  292.  note  b.  Edwards  v. 
v.  Pockley,  1  Vern.  36.  436.  King1  v.  Freeman,  2  P.  Wms.  435. 
King,  3  P.  Wms.  360.  Galton  v.  Han-  (t)  Cope  v.  Cope,  2  Salk.  449.  Bagot 
cock,  2  Atk.  436.  Robinson  v.  Gee,  1  v.  Oughton,  1  P.  Wms.  347.  Leman 
Vcz.  251.  6  Bro.  P.  C.  520.  Philips  v.  Newnham,  1  Vez.  51.  .Robinson  v. 
v.  Philips,  2  Bro.  Ch.  Rep.  273.  Gee,  ib.   251.     Lacam  v.  Mertins,   ib. 

(n)  Bartholomew  v.  May,  1  Atk.  487.  312.     Parsons  v.  Freeman,  Ambl.  115. 

March,  of  Tweedale  v.  Coverley,  1  Bro.  2    P.  Wms.   664.  in  note.     Lawson  V. 

Ch.  Rep.  240.  Hudson,   1  Bro.  Ch.  Rep.  58.     Earl  of 

(0)  Serle  v.  St.  Eloy,  2  P.  Wms.  386.  Tankerville  v.  Fawcet,  2  Bro.  Ch. 
\p)  Galton  v.  Hancock,  2  Atk.  424.  Rep.  57.  Tweddle  v.  Tweddle,  ib.  101. 
{(/)    Carter    v.    Barnardiston,     1    P.  152.     Billinghurst  v.  Walker,  ib.  604. 

Wins.  505.     2  Bro.  P.  C.  1. 

(1)  Shelby  v.  The  Commnmnralfh,  13  Serg.  &  Rawle,  348.  Todd  v.  Todd's 
Ex.  1  Serg.  &  Rawle,  453.  2  Dall.  Rep.  244.  Hall  v.  Hall,  2  M'Cord's  Cha. 
Rep.  302.  ""  M'Kay  v.  Green,  Livingston  v.  Newkirk,  3  Johns.  Cha.  Rep.  57.  312. 
Seaver  v.  Lewis,  14  Mass.  Rep.  83.- 

(2)  The  order  of  marshalling  assets  towards  payment  of  debts  is,  1.  The  per- 
sonal estate  ;  2.  Lands  descended  ;  3;  Lands  devised.  Livingston  v.  Newkirk, 
3  Johns.  Ch.  Rep.  313.  Hall  v.  Hall,  2  M'Cord's  Ch.  Rep.  303.  Shelby  v.  The 
Commonwealth,   13  Serg.  &.  Rawle,  348.     Flays  v.  Jackson,  6  Mass.  Rep.  151. 


CHAP.  VIII.]  OF  MARSHALLING  ASSETS.  419 

bought  subject  to  a  mortgage,  the  personal  estate  of  the  purchaser 
shall  not  be  applied  in  exoneration  of  the  real  estate,  unless  he  ap- 
peared to  have  intended  to  make  the  debt  his  own  (?/);  (1)  but  a 
mere  covenant  for  securing  the  debt  will  not  be  sufficient  for  that 
purpose  (v).  (2) 

With  respect  to  the  priority  of  the  application  of  real  assets, 
when  the  personal  estate  is  either  exempt  or  exhausted,  it  seems 
that  first  the  real  estate  expressly  devised  for  the  purpose  shall  be 
applied;  secondly,  to  the  extent  of  the  specialty  debts,  the  real  es- 
[420]  tate  descended  ;  3dly,  the  real  estate  specifically  devised 
subject  to  a  general  charge  of  debts  (w). 

As  it  is  the  object  of  a  court  of  equity,  that  every  claimant  on 
the  assets  of  the  deceased  shall  be  satisfied,  so  far  as  that  purpose 
can  be  effected  by  any  arrangement  consistent  with  the  nature  of 
the  respective  claims  of  creditors,  it  has  been  long  settled,  that 
where  A.  a  creditor  has  more  than  one  fund  to  resort  to,  and  B. 
another  creditor,  only  one,  A.  shall  resort  to  that  fund  on  which 
B.  has  no  lien  (x).  (3)  If  therefore  a  specialty  creditor,  whose 
debt  is  a  lien  on  the  real  assets,  receive  satisfaction  out  of  the  per- 
sonal assets,  a  simple  contract  creditor  shall  stand  in  the  place  of 
such  specialty  creditor  against  the  real  assets,  so  far  as  the  lat- 
ter shall  have  exhausted  the  personal  assets  in  payment  of  his 
debt  (y).  (4) 

The  same  marshalling  of  assets  may  also  take  place  in  favour  of 
legatees.     As  against  assets  descended  they  shall  have  the  same 

(u)  yPonbl.  202.  note  b.  Pockley  v.  Lewis,   2  Bro.  Ch.  Rep.  257.  261.'  in 

Pockley,  1  Vern.  36.   6  Bro.  P.  C.520.  note,  239.  in  note.  Manning' v.  Spoon- 

Billinghurst   v.    Walker,    2  Bro.    Ch.  er,  3  Ves.  jun.  117. 
Rep.  608.  (x)  1  P.  Witts.  679.  note  1.     Lanoy 

(v)Bagotv.  Oughton,  lP.Wms.347.  v.   Duke  of  Athol,  2  Atk.  446.  Lacam 

Evelyn  v.    Evelyn,    2  P.    Wms.    664.  v.    Mertins,    1  Vez.    312.       Mog-g    v. 

Forrester  v.    Lord  Leigh,  Ambl.  171.  Hodges,  2  Vez.  53. 
Earl  of  Tankerville  v.  Fawcett,  2  Bro.         (y)  2  Ch.  Ca.  4.    Sagittary  v.   Hvde, 

Ch.  Rep.  58.     Tweddell  v.  Tweddell,  1  Vein.  455.  1  Eq.  Ca.  Abr."  144.    Wil- 

ib.   152.     Billinghurst  v.   Walker,    ib.  son  v.  Fielding,    2  Vern.  763,     Gallon 

604.  v.  Hancock,  2  Atk.  436.     3  Wooddes. 

(w)  1  P.  Wms.  294.  note  1.     Galton  489. 
v.    Hancock,  2  Atk.  424.     Dpune   v. 


(1)  9'Serg.  &  Ravvle,  73.  The  devisee  of  unpatented  lands  belonging  to  the 
testator,  has  no  right  to  call  upon  the  personal  estate  of  the  testator  to  pay  the 
purchase  money  and  fees  of  patenting  the  land.  Case  of  John  Keysey,  Ex.  of 
Keysey,  9  Serg.  &.  Rawle,  71. 

(2)  Cumberland  (Duke of )  v.  Codnngion,  3  Johns.  Cha.  Rep.  229. 

(3)  Cheeseborough  v .  Millard,  1  Johns.  Cha.  Rep.  409.  Greenwood  v.  Boequei's 
Ex.  2  Bay's  Rep.  87.     Eowlery.  Barltsdah,  Harp.  Eq.  Rep.  164. 

(4)  Haydon  v.  Good,  4  Hen.  &..  Munf.  460.  So  a  surety  who  pays  a  specialty 
debt,  due  by  the  intestate,  lias  a  right  to  stand  in  the  place  of  the  specialty  credi- 
tor, and  be  paid  such  portion  of  the  assets  as  the  specialty  creditor  would  have 
been  entitled  to.  Durshehner  v.  Bucher,  Adm.  7  Serg.  &  Rawle,  9. 

36 


420  OF  MARSHALLING   ASSETS.  [BOOK  III. 

equity:  Thus  where  lands  are  Subjected  to  the  payment  of  all  dehts, 
a  legatee  shall  stand  in  the  place  of  a  simple  contract  creditor,  who 
has  been  satisfied  out  of  the  personal  assets  (z).  So,  where  legacies 
[421]  by  the  will  are  charged  on  the  real  estate,  but  not  the  lega- 
cies by  the  codicil;  the  former  shall  resort  to  the  real  assets  on  a 
deficiency  of  such  as  are  personal  to  pay  the  whole  (a).  So,  al- 
though a  specialty  creditor  may  elect  to  have  his  debt  out  of  the 
hands  of  the  heir  or  of  the  devisee,  yet,  as  we  have  seen,  the  heir 
or  devisee  shall  in  such  case  stand  in  the  place  of  such  creditor,  and 
reimburse  himself  out  of  the  personal  estate  (6). (1) 

But  the  principles  of  these  rules  will  not  admit  of  their  being 
applied  in  aid  of  one  claimant,  so  as  to  defeat  another.  And,  there- 
fore, a  pecuniary  legatee  shall  not  stand  in  the  place  of  a  specialty 
creditor,  as  against  lands  devised,  though  he  shall  as  against  lands 
descended  (c).  Yet  such  legatee  shall  stand  in  the  place  of  a  mort- 
gagee, who  has  exhausted  the  personal  assets,  to  be  satisfied  out  of 
the  mortgaged  premises,  though  specifically  devised  (d)  ;  for  the 
application  of  the  personal  assets  in  case  of  the  real  estate  mort- 
gaged (e),  does  not  take  place  to  the  defeating  of  any  legacy,  either 
specific  or  pecuniary  (/).  A  legatee  shall  also  stand  in  the  place 
of  a  specialty  creditor,  who  has  exhausted  the  personalty,  as  against 
a  residuary  devisee  of  the  real  and  personal  estate,  because  he  has 
only  the  rest  and  residue  (g-). 

Nor  do  any  of  the  rules  above  mentioned  subject  any  fund  to  a 
claim  to  which  it  was  not  before  liable,  but  only  provide  that 
the  election  of  one  claimant  shall  not  prejudice  the  claims  of  the 
[422]  others  (A).  Thus,  where  A.,  seised  of  freehold  anW  copy- 
hold lands,  mortgaged  thorn  in  his  lifetime,  and  died  indebted  by 
mortgage,  and  on  several  bonds,  the  specialty  creditors  urged  the 
court,  in  marshalling  the  assets  to  cast  the  whole  mortgage  upon 
the  copyhold  estate,  in  order  that  the  specialty  creditors  might  have 
the  benefit  of  the  whole  freehold  estate:  yet  the  court  held,  that  as 
copyhold  estates  were  not  liable,  either  at  law  or  in  equity,  to  the 
testator's  debts,  farther  than  he  subjected  them  to  the  same,  the 
copyhold  estate  should  bear  its  proportion  with  the  freehold  estate 

(c)  Haslewood  v.  Pope,  3  P.  Wms.  Ambl.  171. 

323.  (e)  Vid.  Howel  v.  Price,  1  P.  Wms. 

(«)  3  Ch.  Hep.  83.   Masters  v.   Mas-  294. 

ters,  1  P.  Wms.  422.  Bligh  v.  Earl  of  (/)  Oneal  v.  Mead,  1  P.  Wms.  693. 

Daroley,  2  P.  Wms.  620.  Tipping  v.  Tipping,  ib.  730.     Davis  v. 

(b)  Clifton  v.  Bifft,   1  P.  Wms.  680.  Gardiner,   2  P.   Wms.    190.     Rider  v. 

(c)  Heme   v.  Meyrick,     1    1'.  Wms.  Wager,  ib.  335. 

201.    Clifton  v.   Burt,  678.   Haslewdod  (g)   Handby  v.  Roberts,  Ambl.  129. 

v.  Tope,  3  P.  Wins.  324.  (//)  Galton  v.   Hancock,  2  Atk.  438. 

(if)    Lutkins  v.  Leigh,    Ca.    Temp.  Lacam  v.  Mertins,  1  Vez.  312. 
Talb.  53.     Forrester   v.    Lord    Leigh, 


(1)  See  anlr,  page  111,  n.  (1). 


CHAP.   VIII.]  OF  MARSHALLING  ASSETS.  422 

for  payment  of  the  mortgage,  but  should  not  he  liable  to  make  sa- 
tisfaction for  the  specialty  debts  (/').  But  this  case,  as  being  quite 
anomalous  and  irreconcileable  with  all  principle,  has  been  lately 
overruled  (k). 

Where  a  testator,  having  both  freehold  and  copyhold  estates, 
charges  all  his  real  estate  with  payment  of  his  debts,  if  he  has 
surrendered  the  copyhold  to  the  use  of  his  will,  the  freehold  and 
copyhold  shall  be  applied  rateably  ;  but  if  he  nas  nut  surrendered 
the  copyhold,  it  shall  not  be  applied  until  the  freehold  is  ex- 
hausted (/). 

If  a  legacy  be  given  out  of  a  mixed  fund  of  real  and  personal  es- 
tate, payable  at  a  future  day,  and  the  legatee  die  before  the  day  of 
payment,  it  is  doubtful  whether  the  court  will  marshal  the  assets,  so 
as  to  turn  such  legacy  on  the  personal  estate  :  in  which  case  it  would 
be  vested  and  transmissible;  but,  as  against  the  real  estate,  it  would 
sink  by  the  death  of  the  legatee  (m). 

As  against  real  assets  descended,  the  wife  shall  stand  in  the  place 
of  specialty  creditors  for  the  amount  of  her  paraphernalia  (n)  ;  but, 
[423]  whether  she  shall  be  so  entitled  as  against  real  assets  devised, 
seems  to  be  a  point  unsettled  (o),  excepting  in  the  case  of  a  real  es- 
tate charged  with  payment  of  debts  in  aid  of  the  personal  estate, 
in  which  the  court  decreed  her  paraphernalia  to  the  wife,  in  preju- 
dice of  the  charged  estate  (p). 

A  court  of  equity  will  not  marshal  assets  in  favor  of  a  charitable 
bequest,  so  as  to  give  it  effect,  out  of  the  personal  chattels,  it  being 
void  so  far  as  it  touches  any  interest  in  land  (q). 

Under  a  devise  of  real  and  personal  estate  in  trust  to  pay  debts 
and  legacies,  some  of  which  were  void. under  the  stat.  9  Geo.  2.  c. 
36.  as  a  charge  of  charity  legacies  upon  the  real  and  leasehold  es- 
tates and  money  on  mortgage  ;  on  a  deficiency  of  assets  the  other 
legatees  were  preferred  to  the  heir  (r). 

*  (!)  Robinson  v.    Tonge,  cited  1  P.  729.    'Snelson  v.  Corbet,   3  Atk.  369. 

Wins.  679.  note  1.,  and  vid.  supr.  411.  Graham  v.   Londonderry,  ib.  393. 

and  2  Vez.  271.  (»)  2  P.  Wms.  554.  note  1.    Probert 

(k)   Aldricb  v.   Cooper,   8  Ves.  jnn.  v.    Clifford,    Anibl.    6.      Incledon     v. 

382.  See  also  Trimmer  v.  Bayne,  9  Ves.  Northcote,  3  Atk.  438.     3   Bac.  Abr. 

jun.  209.     And  in  Tomlinson   v.    Lad-  87.    Lord  Townsend  v.  Windham,    2 

broke,  at  the  Boll's  sittings  after  Hil.  Ves.  7.    Vid.  supr.  231. 

T.  1809,  Sir  Wm. -Grant,   M.  It.  held  (p)    Boyntun   v.    Boyntun,   1   Cox's 

clearly  that  the  assets  should  be  mar-  Rep.  106. 

shalled  as  against  a  copyhold  estate.  (?)  Mo&g    v.    Hodges,     2  Vez.    52. 

(I)  Growcock  v.  Smith,  2  Cox's  Pep.  Attorney   General    v.    Tyndall,    Amid. 

397,  614.   Foster  v.  Blagden,  ib.  704.     Ilill- 

(//()  Prowse  v.  Abingdon,  1  Atk.  482.  yard  v.  Taylor,  ib.  713.     3  Wooddes. 

and    Fearce    v.     Taylor,  before   Lord  489.    note  (g-).     Mogg    v.    Hodges,    1 

Thurlow,  C.  Trin.  Vac.    1790,   cited  1  Cox's   Rep.    7.  and   oilier   cases  m  the 

P.  Wms.  679.  note  1.                     ■  same  work. 

00  Tipping  v.  Tipping,   1  P.  Wms.  00  Currie  v.  Pye,  17  Ves.  jun.   462 


[     4f24      ] 


CHAP.  IX. 


OF  A  DEVASTAVIT. 


Having  thus  discussed  what  belongs  to  the  discharge  of  an  exe- 
cutor's duty,  I  am  now  to  consider,-  what  shall  amount  to  such  a 
violation  or  neglect  of  it  as  shall  make  him  personally  responsible. 

This  species  of  misconduct  is  styled  in  law  a  devastavit ;  that  is, 
a  wasting  of  the  assets  («). 

And  where  an  executrix  in  respect  of  her  receipts  as  such,  was 
considerably  indebted  to  the  estate,  an  annuity  to  which  she  was  en- 
titled under  the  will,  was  ordered  as  it  became  due,  to  be  applied 
in  payment  of  such  debt,  and  her  solicitor  was  declared  to  have  a 
lien  for  his  taxed  costs,  upon  any  payment  of  the  annuity  to  which 
she  might  be  entitled,  after  payment  of  what  was  due  to  the  es- 
tate (b). 

An  executor  may  incur  this  charge  in  a  variety  of  modes,  not  on- 
ly by  plain  and  palpable  acts  of  abuse,  as  giving  away,  embezzling, 
or  consuming  the  property,  without  regard  to  debts  or  legacies  ; 
but  also  by  misapplying  it  in-extravagant  expences  in  the  funeral  (c); 
in  the  payment  of  debts  out  of  their  legal  order,  to  the  prejudice  of 
such  as  are  superior  ;  or  by  an  assent  to,  or  payment  of  a  legacy, 
when  there  is  not  a  fund  sufficient  for  creditors  (d).  Or  by  disburse- 
ments in  the  schooling,  feeding,  or  cloathing  of  an  intestate's  chil- 
dren subsequently  to  his  decease  (e). 

So  if  the  executor  release  or  cancel  a  bond  due  to  the  testator,  or 
[425]  deliver  it  to*the  obligor,  this  shall  charge  him  to  the  amount 
of  the  debt,  whether  in  point  of  fact  he  received  it  or  not  (f).  If 
he  release  a  cause  of  action  accrued  in  right  of  the  testator,  whether 
before  or  subsequently  to  the  testator's  death,  this  also  will  general- 
ly speaking  (g),  be  a  devastavit  (/i).  If  he  submit  to  arbitration  a 
debt,  or  any  other  demand  he  may  be  entitled  to  in  right  of  the  tes- 
tator, and  the  arbitrator  do  not  award  him  a  recompence  to  the  full 
value,  this,  as  being  his  own  voluntary  act,  shall  bind  him  to  answer 

(a>  Of!'.  Ex.  157.  3  liar,  \hv.77.  Com.  ('<•)  Ciilos  v.  Dyson,  1  Starkie,  32. 

Dig.'Admon.  I.  1.    14  Yip.  Abr>.  306.  ( f)  Off.  Ex.  159.    1  Nets.  Abr.  262. 

'{/,)  Skinner  v.  Sweet,   3  .\ladd.  ftgp.  ({,<-)   Sed  vid.  inf.  429. 

Ml.  ('//)  ()(!'.  Ex.  71.  159.    Cbandler  \. 

(c)  VicL.  supr.  246.  Thompson,     Hob.     266.      And.     138. 

(r/^  Off  Ex.  158.  Briglitmun  v.  Kniyhtley,  Cro.  Eliz.  43. 


CHAP.  IX.]  OF  A  DEVASTAVIT.  425 

the  difference  (h).  If  an  executor  take  an  obligation  in  his  own 
name  for  a  debt  due  by  simple  contract  to  the  testator,  he  shall  be 
equally  chargeable  as  if  he  had  received  the  money  ;  for  the  new 
security  has  extinguished  the  old  right,  and  is  quasi  a  payment  («). 
If,  in  the  character  of  an  executor,  he  commence  an  action  in  which 
he  has  a  right  to  recover,  and  afterwards  agree  with  the  defendant 
to  receive  a  specific  sum  at  a  future  day  as  a  compensation,  and  the 
party  fail  to  pay  it,  the  executor,  in  that  case,  is  liable  on  a  devas- 
tavit for  the  value  (k).  Thus,  where  the  executor  of  an  obligee 
took  in  payment  a  bill  of  exchange  drawn  on  a  banker  for  the  money, 
who  accepted  the  bill,  and  before  payment  failed  ;  on  the  executor's 
afterwards  bringing  an  action  on  the  bond,  and  this  matter  being 
disclosed  in  evidence,  it  was  held  to  be  a  payment  (/).  So,  if  an 
[426]  executor  pay  money  in  discharge  of  anusurious  bond,  or  any 
other  usurious  contract  entered  into  by  the  testator,  it  shall  involve 
him  in  the  same  consequences  (n%)- 

Such  acts  also  of  negligence  and  careless  administration  as  tend 
to  defeat  the  rights  of  creditors,  or  legatees,  fall  under  the  same  de- 
nomination. As  if  the  executor  delay  the  payment  of  a  debt  paya- 
ble on  demand  with  interest,  and  suffer  judgment  for  principal  and 
interest  incurred  after  the  testator's  death  ;  unless  he  can  shew  that 
the  assets  were  insufficient  to  discharge  the  debt  immediately  (»), 
he  shall  be  held  guilty  of  a  devastavit.  ; 

If  the  executor  lose  any  of  the  testator's  chattels,  he  shall  be  re- 
sponsible for  their  value  (o).  And  in  a  case  where  the  executor  had 
lost  a  bond  due  to  the  testator,  the  Court  of  Chancery  was  inclined 
to  charge  him  with  the  debt :  but  directed  only  that  he  should 
prosecute  a  suit  instituted  by  him  against  the  obligor,  with  effect, 
in  order  to  recover  the  money  on  the  bond,  and  respited  judgment 
in  the  mean  time  (p).  If  the  executor  apply  merely  by  an  attorney 
to  the  obligor  of  a  bond  to  pay  the  debt,  but  bring  no  action,  he 
shall  be  charged  with  the  amount  of  it  (q).  He  shall  in  like  man- 
[427]  ner,  be  personally  answerable,  if,  by  delaying  to  commence 
an  action,  he  has  enabled  a  creditor  of  a  testator  to  avail  himself  of 
the  statute  of  limitations  (/•).  f 

If  an  executor  appoint  an  agent  to  collect  the  testator's  effects,  and 
the  agent  embezzle  them,  it  shall  be  a  devastavit  by  the  executor  (■?). 
If  a  term  be  assigned  by  an  executor  in  trust,  to  attend  an  inherit- 
ed) Off.  Ex.   71.   159,   160.     Anon.  (ri)  Seaman  v.  Everad,  2  Lev.  40.  and 
3  Leon.  51.                                                      see  Hall  v.  Hallet,  1  Cox's  Rep.  134. 

(t)  Goring  v.  Goring-,  Yelv.  10.  (o)  Vid.  Goodfellow  v.  Burchett,  2 
Norden  v.  Levit,  2  Lev.  189.  Keilw.  52.     Vern.  299. 

(A-)  Norden    v.  Levit,  2  Lev.  189.  2  (p)  Ibid. 

.Ion.  88.  S*  C.  Barker  v.  Talcot,  1  {<;)  3  Bac.  Abr.  60.  Lowson  v. 
Vern.  474.  Copeland,  2  Bro.  Ch.  Rep.  156. 

(/)  3  Bac.  Abr.  78.  in  note,  et  vid.  (r)  Havward  v..  Kinsey,  12  Mod. 
1   Vern.  474.  57i.  11  Vin.  Abr.  309. 

(th)  Wihchcombe  v.  Bp.  of  Win-  (a)  Jenkins  v.  Plombe,  6  Mod.  93. 
Chester,  Hob.  167.    Nov,  129. 


427  OF  A  DEVASTAVIT.  [BOOK  III. 

ance,  it  shall  in  equity  follow  all  the  estates  created  out  of  such 
inheritance,  and  all  the  incumbrances  subsisting  upon  it  (t)  ;  hut 
as  by  such  assignment  the  term  ceases  to  be  assets  at  law,  the  exe- 
cutor shall  be  responsible  to  the  creditors  for  a  devastavit  (it).  If 
an  executor  retain  money  in  his  hands  for  any  length  of  time,  which 
by  application  to  the  Court  of  Chancery,  or  by  vesting  in  the  funds, 
he  might  have  made  productive,  he  shall  be  charged  with  interest 
upon  it  (w).  If  he  permit  rent  to  run  in  arrear,  and  it  is  lost  through 
his  negligence,  he  will  be  charged  with  the  amount  so  lost  (x). 

If  he  lay  out  the  assets  on  private  securities,  all  the  benefit  made 
thereby  shall  accrue  to  the  estate,  yet  the  executor  shall  answer  all 
the  deficiency  (y). 

And  where  an  executor  sold  houses  and  applied  part  of  the  mo- 
ney in  payment  of  debts,  &c.  and  paid  the  rest  into  his  bankers, 
;nixing  it  with  his  own  money,  instead  of  vesting  the  same  in  stock 
as  directed  by  the  will,  and»the  jankers  failed,  he  was  held  liable 
to  pay  the  money  to  the  legatees  (z). 

If  an  executor  sell  the  testator's  goods  at  an  undervalue,  although 
it  be  an  appraised  value  (a)  ;  or  if  he  delay  disposing  of  them,  by 
which  they  are  injured,  he  is  personally  bound  to  make  a  compen- 
sation (b).  If  he  omit  to  sell  the  goods  at  their  full  price,  and  after- 
wards they  are  taken  out  of  his  hands,  he  shall  be  liable  to  the  ex- 
[428]  tent  of  the  value  of  the  goods,  and  not  merely  to  what  he  re- 
covers in  damages  ;  for  there  was  a  default  on  his  part  (c).  But 
if,  without  any  imputation  on  him,  the  goods  are  taken  out  of  his 
possession,  although  he  recover  not  such  damages  as  the  goods  were 
really  worth,  he  shall  be  responsible  for  no  more  than  he  reco- 
vers (d).  If  the  goods  be  perishable,  and  on  his  part  there  has  been 
neither  neglect  in  keeping  them,  nor  delay  in  selling  them  ;  in  case 
they  are  impaired,  he  shall  not  answer  for  their  first  value,  but  on- 
ly for  what  they  were  worth  at  the  time  of  the  sale.  Yet,  if  the 
goods  be  taken  out  of  his  possession,  he  must  sue  the  party  taking 
them,  that  he  may  exempt  himself  from  any  greater  claim  than  the 
damages  he  shall  recover  (e). 

In  case  of  an  executor's  investing  money  in  the  funds,  and  ap- 
propriating the  same,  he  shall  not  be  answerable  for  a  loss  by  the 

(t)  Supr.  410.  (y)    Adye  v.  Feuilleteau,     1   Cox's 

(u)  Charlton  v.  Lowe,  3  P.    Wms.  Rep.  24. 

330.     Willoug-hby    v.    Willoug-hby,    1  (r)  Fletcher    v.    Walker,    3  Mud  J. 

Term  Rep.  763.  Rep.  73. 

(10)  2  Fonbl.  2d   edit.  184.  note  p.  (a)  Off.  Ex.  158. 

Bird  v.  Lockey,  2  Vern.  744.  Perkins  \b)  Jenkins  v.  Plombe,  G  Mod.  181, 

v.    Baynton,    1    Bro.    Ch.    Rep.    375.  182. 

Fittlehales    v.    Cascoyne,    3    Bro.   Ch.  (c)  Ibid. 

Rep.  73.     Franklin    v.    Frith,  433.   et  (d)  Jenkins  v.  Plombe,  6  Mod.  181, 

vid.  ibid.  107.  182. 

(x)    Tebbs   v.    Carpenter,    1  Madd.  (t)  Ibid. 
Rep.  290, 


CHAP.  IX.]  OF  A  DEVASTAVIT.  428 

fall  of  stocks  (f).  Nor,  as  it  seems,  shall  he  he  so  liable,  although, 
without  the  indemnity  of  a  decree,  he  lend  money  on  a  real  securi- 
ty, which  at  the  time  there  was  no  reason  to  suspect  (g).  It  has 
been  held  that  trustees  lending  money  on  personal  security,  is  not 
of  itself  such  gross  neglect  as  to' amount  to  a  breach  of  trust  (A). 
But  it  has  since  been  decided  that  an  executor  cannot  lend  money 
on  personal  security,  though  words  which  may  imply  a  discretion 
so  to  do  are  used  by  the  testator  in  his  will  (i).  Nor  will  a  power 
to  lend  money  upon  real  or  personal  security,  enable  trustees  to 
accommodate  a  trader  with  a  loan  upon  his  bond  (k).  An  executor 
has  an  honest  discretion  to  call  in  a  debt  bearing  interest,  if  he  con- 
ceive it  to  be  in  hazard  (/).  If  an  executor  merely  give  a  receipt 
[429]  for  so  much  due  on  a  bond  as  he  in  fact  receives,  he  shall  not 
be  charged  with  a  devastavit  for  the  residue  (m).  Nor  is  a  con- 
version of  the  goods  of  the  testator  to  his  own  use  a  devastavit,  if 
he  pay  debts  of  the  testator  to  the  value  with  his  own  money  (n). 
Nor  is  he  so  liable  if  he  pay  a  debt  of  an  inferior  nature  out  of  his 
own  purse  to  the  amount  of  the  testator's  effects  in  his  hands  ;  for 
they  remain  equally  liable  to  the  claim  of  the  superior  creditor,  and 
may  equally  be  seized  at  his  suit  in  execution  in  specie,  as  the  tes- 
tator's property  (o).  Nor,  if  the  executor  compound  an  action  of 
trover  for  the  goods  of  the  testator,  and  take  a  bond  for  the  money 
payable  at  a  future  day,  does  that  act  necessarily  amount  to  a  de- 
vastavit, as  the  money,  for  which  the  bond  is  taken,  is  assets  im- 
mediately (/?).  But  he  shall  be  charged,  as  we  have  seen  (q),  in 
case  there  be  a  failure  in  the  payment  of  it.  If  there  be  arrears  of 
rent  on  a  lease,  and  on  the  tenant's  becoming  insolvent,  the  execu- 
tor release  the  arrears,  and  give  him  a  sum.  of  money  to*  quit  pos- 
session ;  in  case  he  appear  thus  to  have  acted  for  the  benefit  of  the 
estate,  he  shall  be  allowed  both  (?*).  Nor  is-an  executor,  as  we  have 
seen  (s),  bound  to  plead  the  statute  of  limitations  to  an  action  com- 
menced against  him  by  a  creditor  of  the  testator. 

If  an  executor  become  bankrupt,  having  wasted  the  assets,  the 
devastavit  may  be  proved  under  the  commission  (t).  Where  a 
specific  legacy  was  given  to  an  executor,  who  afterwards  became 
bankrupt  and  committed  a  devastavit,  and  the  subject  of  the  speci- 

(/)  2  Fonbl.  2d  edit.  184.  note  p.         (/)    2  Fonbl.  2d  edit.  186.  note  q. 

Hutchinson  v.   Hammond,    3  Bro.  Ch.  Newton  v.  Bennet,    1    Bro.  Ch.  Rep. 

Rep.  147.     Franklin  v.  Frith,  ib.  433.  361.  Sed  vid.  Anon.   Mosel.  98. 
Vifl.   also  Cooper  v.  Douglas,   2  Bro.         (m)  Com.  Dig.  Admon.I.  2.  Off.  Ex. 

Ch.  Rep.  231.  159. 

(g)  Brown   v.    Litton,    1  P.   Wms.         (n)  Merchant  v.    Driver,    1  Saund. 

141.  307.   Vid.  supr.  238. 

(It)  Harden  v.  Parsons,  1  Eden's  (o)  Wheatly  v.  Lane,  1  Saund.  218. 
Rep.  14-5.  lp)  Norden  V.  Levit,  2  Lev.  189. 

'J.)  Wilkes  v.  Steward,  Coop.  Rep.         (a)  Supra,  425. 
6.  and  2  Cox's  Rep.  1.  (»•)  Blue  v.  Marshall,  3  P.  Wms.  381. 

(A-)    Langston    v.     Ollivant,     Coop.         (.s)  Vid.  supr.  343. 
Rep.  33.  (/)  Whitmarsh's  B.  L.  2d  edit.  269, 


429  OF  A  DEVASTAVIT.  [BOOK  III. 

fic  bequest  was  sold  by  his  assignees,  it  was  held,  that  the  produce 
in  their  hands  was  not  specifically  liable  to  make  good  the  devasta- 
vit, in  favour  of  the  parties  beneficially  entitled  under  the  will,  but 
that  such  parties  were  only  entitled  to  prove  under  the  commission 
to  the  amount  of  the  devastavit  (v). 

[430]  If  the  husband  of  an  executrix  commit  a  devastavit,  in 
case  the  executorship  commenced  before  the  marriage,  they  shall 
both  be  chargeable.  If  it  commenced  subsequently  to  the  marriage, 
the  husband  is  liable  alone.  If  an  executrix  commit  a  devastavit, 
and  afterwards  marry,  the  husband  we  have  seen,  as  well  as  the 
wife,  is  responsible  during  the  coverture  (u). 

A  devastavit  by  one  executor  shall  not  charge  his  companion  (10) ; 
(1)  and  if  there  be  several  executors  or  administrators,  each  shall 
be  liable  only  for  what  he  receives  (x),  (2)  provided  he  hath  not 
intentionally  or  otherwise  contributed  to  the  devastavit  of  the 
other  (y).  (3) 

But  an  executor  administering,  having  once  received  money,  as- 
sets of  his  testator,  cannot  discharge  himself  under  the  plea  of  plent 
administravit  to  an  action  by  a  bond-creditor  of  his  testator,  by 
shewing  that  he  paid  the  money  over  to  his  co-executor,  even  for 
the  purpose  of  satisfying  the  bond-creditor  who  had  applied  for  pay- 
ment of  such  co-executor,  if  the  co-executor  afterwards  misapplied 
the  money  by  retaining  it  to  satisfy  his'own  simple  contract  debt  (z). 

Formerly,  the  executor  of  an  executor  could  not  be  charged  by  a 
devastavit  committed  by  the  first  executor,  although  to  the  preju- 
dice of  the  king,  for  it  was  held  to  be  a  tort  (a),  and,  therefore,  to 
die  with  the  party.  But,  by  the  stat.  4  &  5  IV.  $  M.  c.  24.  s.  12. 
(4)  an  executor  of  an  executor  shall  be  liable  on  a  devastavit  com- 
mitted by  his  testator,  in  the  same  manner  as  he  would  have  been 
if  living. 

(v)  Geary    v.    Beaumont,    3  Meriv.  3  Bro.  Ch.  Rep.  74,  and  vid.  infr. 

431.  (•»)  Barnes,  440. 

00  Beynon  v.   Gollins,  2  Bro.   Ch.  (y)  Vid.  infr. 

Bep.  323.     Vid.  supr.  358,  359.  (z)  Crosse  v.  Smith,  7  East,  246. 

(w)  Off.  Ex.  161,  162.  Dyer,  210.  3  .      (a)  Tucke's  case,  3  Leon.  241.  Bey- 

Bac.  Abr.  31.   Littlehales  y.  Gascoyne,  non  v.  Gollins,  2  Bro.  Ch.  Rep.  324. 

(1)  Sutherland  v.  Brush,  7  Johns.  Cha.  Rep.  17. 

(2)  Douglass  v.  Safterke,  11  Johns.  Rep.  16.  Brown's  Appeal,  1  Dall.  Rep. 
311.     Moore  v.  Tandy,  3  Bibb's  Rep.  97. 

(3)  Knox  v.  Picket,  4  Desaus.  Rep.  92.  Morrell  v.  Marrelt,  5  Johns.  Cha. 
Rep.  283.     Sutherland  v.  Brush. 

'  (4)  The  better  opinion  seems  to  be  that  this  statute  is  in  force  in  Pennsylvania. 
See  Roberts'  Dig.  Brit.  Statutes,  260. 


I      431     ] 


CHAP.  X. 

OF  REMEDIES  FOR  AND  AGAINST  EXECUTORS  AND  ADMINISTRATORS, 
AT  LAW    AND  IN  EQUITY. 


Sect.  I. 
Of  remedies  for  executors  and  administrators  at  law. 

Before  I  conclude,  it  will  be  necessary  to  consider,  first,  what 
remedies,  either  at  law  or  in  equity,  executors  or  administrators 
are  entitled  to,  in  right  of  the  deceased  ;  and  then,  secondly,  what 
remedies  may  be  had  against  them. 

In  regard  to  the  first  of  these  points,  the  subject  has  been  in  a 
great  measure  anticipated  by  the  discussion  of  the  executor's  inter- 
est in  the  testator's  chosesin  action  (a),  the  existence  of  which  ne- 
cessarily supposes  a  remedy  to  give  it  effect. 

From  what  has  been  already  stated  it  appears,  that  the  executor 
represents  the  testator  in  respect  to  all  his  personal  contracts  :  there- 
fore he  may  maintain  such  actions,  to  enforce  them  as  might  have 
been  maintained  by  the  testator  himself  (5).  Thus  an  executor 
[432]  may  have  an  action  on  a  debt  due  to  the  testator  by  judgment, 
statute,  recognizance,  obligation,  or  other  specialty  (c).  So  he  is  enti- 
tled to  an  action  of  debt  suggesting  a  devastavit  in  the  lifetime  of 
his  testator,  on  a  judgment  recovered  by  such  testator  against  an  ex- 
ecutor (d).  So  the  executor  of  the  assignee  of  a  bail-bond  shall 
have  an  action  upon  it  (e).  So  an  executor  may  maintain  an  action 
on  a  bond,  though  conditioned  for  the  performance  of  an  award  (f ). 
He  may  also  have  an  action  on  a  covenant  entered  into  with  the 
testator  to  perform  a  personal  thing  (g)  ;  and  even  on  a  covenant 
that  touches  the  realty,  as  for  assuring  lands,  if  it  were  broken  in 
the  testator's  lifetime  ;  and  in  such  cases  damages  shall  be  recover- 

(a)  Vid.  supr.  157.  Mod.  Ca.   126.   S.  C.    Ld.   Raym.  971. 

\b)  3  Bac.  Abr.  59.  91.   Countess  of  1502.     Vid.  Erving  v.  Peters,  3  Term 

Rutland    v#    Rutland,    Cro.    Eliz.  377.  Rep.  685. 
Latch.  16,7.    Roll.  Abr.  912.     Off.   Ex.  O)  Fort.  367. 

65.  (/)  2  Ventr.  349. 

(c)  Com.  Dig.  Admon.  B.  13.  (g)  Latch.  168. 

(d)  Berwick  v.  Andrews,  1  Salk.  314. 

37 


432  OF  REMEDIES  FOR  [BOOK  III. 

ed  b}^  the  executor,  although  he  be  not  expressly  named  (h)  ;  (1) 
for  since  the  testator  was  entitled  to  an  action  of  covenant  for  such 
breach  and  to  recover  damages  as  the  principal  remedy,  and  not 
merely  accessary,  the  law  devolves  such  remedy  on  the  executor  : 
but  if  waste  be  committed  by  the  lessee  in  the  lifetime  of  the  lessor, 
after  his  death  his  heir  can  have  no  action  for  the  waste,  because  he 
cannot  recover  treble  damages  ;  nor  can  the  executor  have  it,  for  he 
[433]  has  no  right  to  recover  the  place  wasted,  the  inheritance  of 
which  has  descended  to  the  heir  (?'). 

The  executor  may  also,  in  the  right  of  the  testator,  maintain  an 
action  on  simple  contracts,  in  writing,  or  not  in  writing,  either  ex- 
press or  implied  (A?)  ;  and  even  on  contracts  for  the  benefit  of  a  third 
person  (/).  He  may  likewise  have  an  action  for  a  relief  due  to 
the  testator  (m).  And  pursuant  to  the  stat.  13  Ed.  1.  West.  2.  c. 
23.  (2)  an  executor  is  entitled  to  an  action  of  account  on  account 
with  his  testator  (n)  ;  but  this  species  of  remedy  in  the  courts  of 
law  has  fallen  into  disuse.  He  may  also,  by  the  express  provision 
of  the  stat.  4  Ed.  3.  c.  7.,  (3)  have  an  action  of  trespass  for  the  tak- 
ing of  the  testator's  goods  :  and  although  the  statute  speak  only  of  the 
carrying  away  of  goods,  yet  its  operation  is  not  confined  to  that 
specific  trespass,  which  is  named  merely  for  an  example  ;  but  it 
has  been  held,  as  we  have  seen  (o),  to  comprehend  other  injuries  to 
the  testator's  personal  estate  {p)  :  therefore  on  this  statute,  an  ac- 
tion will  lie  for  trespass  with  cattle  on  his  leasehold  premises  (q)  ; 
or  for  cutting  corn,  though  growing  on  his  freehold  lands,  and  car- 
rying it  away  at  the  same  time  (r).  So  by  the  like  equity  of  this  stat- 
[434]  ute  an  executor  may  maintain  an  action  of  trover  for  the  con- 
version of  the  testator's  goods  in  his  lifetime  (s)  ;  (4)  or  an  action 

(h)  Com.  Dig.  Admon.  B.  13.  Cove-  (n)  Com.  Dig.  Admon.  B.  13. 

riant,  B.  1.     3  Bac.  Abr.  91.     Lucy  v.  (o)   Supr.  158. 

Levington,    2  Lev.  26.    S.  C.    Ventr.  (p)  Com.  Dig-.  Admon.  B.  13.  Semb. 

175.     Oft'.  Ex.  65.  Latch.  168. 

(/)  Off.  Ex.  65.  Com.  Dig-.  Wast.  C.  (?)  Oft".  Ex.  67,  68. 

3.     2  Inst.  305.  (r)  Emerson  v.  Emerson,    1  Ventr. 

(&)  Com.  Dig.  Admon.  B.  13.  3  Bac.  1S7. 

Abr.    59.    92.     Petrie    v.    Ilannav,    3  (s)    Harris    v.     Vandridge,     Moore, 

Tei-m  Rep.  660.                                            .  400.  Countess  of  Rutland  v.   Rutland. 

(/)  Al.  1.  Cro.  Bliz.  577.  Latch.  168.     1  Anders. 

(w)  Nov.  43.  Ld.  St.  John  v.  Brand-  242.   Russell's  case,    1  Leon.  193,  194. 

ring-,  Cro.  Eliz.  883.  Moreron's  case,  1  Ventr.  30. 

(1)  Watson,  Mm.  v.  Blum,  Ex.  12  Scrg-.  Sc  Rawle,  131. 

(2)  In  force  in  Ptnn&ylvknia,  3  Binn.  604.     Robert*'  Dig.  14. 

(3)  In  force  in  Pehnsylvania,rS  Binn.  610.     Huberts'  Dig-.  248. 

(4)  See  2  Johns.  Rep.  229.  Kirby  v.  Clark,  1  Foot.  389.  Towle  v.  Lovett, 
6  Mass.  Rep.  394.  And  the  statute  of  limitations  is  no  bar  in  an  action  of  trover, 
where  the  conversion  of  the  property  of  a  deceased  person  was  before  letters  of 
administration  were  granted  to  the  plaintiff,  but  at  a  time  when  there  was  no 
person  to  assert  the  rights  of  the  creditors  and  legatees  of  the  deceased-^the  sta- 
tute beg-'ms  to  operate. only  from  the  time  a  right  to  demand  the  property  vests 
in  some  one.  Haslelfs  Mm.  v.  Glenn,  7  Harr.  Sc  Johns.  Rep.  17.  Fi.-'/ncick's 
Mm.  v.  SeweU,  4  liarr.  &  Johns. 


CHAT.  X.]  KXECUTORS  AT  LAW.  434 

of  debt  on  the  stat.  2  &  3  Ed.  6.  c.  13.  for  not  setting  out  tithes  due 
to  the  testator  (t)  ;  or  a  quare  impedit,  in  case  he  died  within  six 
months  after  the  usurpation  (u)  ;  and,  it  seems,  that  under  this  stat- 
ute an  executor  may  maintain  ejectment  for  an  ouster  of  the  testa- 
tor, although  he  were  seized  in  fee,  because  in  such  case  the  exe- 
cutor may  proceed  in  that  form  of  action  for  damages  only  (iv),  in 
the  same  manner  as  a  lessee  where  the  lease  expires  pending  the 
suit  (.r). 

By  the  common  law  an  executor  is  entitled  to  an  action  of  re- 
plevin for  goods  distrained  in  the  testator's  lifetime  (y)  ;  or  to  an 
action  of  detinue  for  any  specific  chattel  ;  or  to  bring  ejectment  to 
recover  land  held  for  a  term  of  years  ;  for  in  those  instances  the 
thing  itself  is  the  object  of  the  action,  and  the  property  continues 
in  the  plaintiff  (z). 

[435]  He  may  likewise  avow  for  rent  in  arrear  at  the  testator's 
death,  as  incident  to  a  reversion  for  years,  which  devolved  upon 
him  as  executor  («). 

An  executor  shall  also  have  an  action  against  a  sheriff  for  thees- 
cape  of  a  party  in  execution  on  a  judgment  obtained  by  the  testator, 
even  where  the  escape  happened  in  the  testator's  lifetime  (b).  (1) 
So  he  may  have  an  action  against  the  sheriff  for  not  returning  Ins 
writ,  and  paying  money  levied  on  a  fieri  facias  (c),  (2)  or  for  a 
false  return,  stating  that  he  had  not  levied  the  debt,  when  in  truth 
he  had  (d).  So  the  executor  of  a  landlord  may  maintain  an  action 
against  an  officer  for  removing  goods  taken  in  execution  before  the 
payment  of  a  year's  rent  (e).  So  in  the  character  of  an  executor  he 
may  have  a  writ  of  error  {/).     And  it  has  been  held,  that  he  may 

(/)    Holl    v.    Bradford,    1    Sid.    88.  (a)  Com.  Dig.  Distress,  A.  2.  1  Roll. 

Morton  v.  Hopkins,  407.     Williams  v.  Abr.  67 2.     Wankford  v.  Wankford,  1 

Cary,  4  Mod.    404.     Eaves  v.  Mocato,  Salk.  302.  307.     Duncombe  v.  Walter, 

1  Salk.  314.  Moreron's  case,   1  Ventr.  2  Show.  254. 

30.     3  Bac.  Abr.  91,  in  note.  (b)  Com.  Dig.  Admon.  B.  13.  Spurs- 

(h)  Off.  Ex.  66,  67.  Sav.  94.  Latch,  tow  v.    Prince,  Cro.  Car.  297.     Dyer, 

168.     Noy.  87.     Poph.  189.     4  Leon.  322.     Vid.   Berwick  v.  Andrews,  Ld. 

15.  Raym.  973. 

(w)  3  Bac.  Abr.  92.  Moreron's  case,  (c)  1  Roll.  Abr.  913.     Spurstow  v. 

1  Ventr.  30.     Doe  v.   Potter,  3  Term  Prince,  Cro.  Car.  297. 

Rep.  13.  (cf\  Williams  v.  Carv,  4  Mod.  404. 

(x)  Doe  v.  Potter,  3  Term  Rep.  16.  S.  C.    1  Salk.  12.     Comb.  S-  C.  322, 

argdo.  Co.  Litt.  285.     Stra.  1056.  323.     S.  C.  1  Ld.  Raym.  40.     3  Bac. 

(y)  Arundell  v.   Trevill,    1  Sid.  82.  Abr.  98. 

Latch.   168.     Off.  Ex.  66.     Gilb.  L.  of  (e)  Palgrave  v.  Windham,  Stra.  202. 

Distr.  3d  edit.  156.  (/)  Latch.  167. 

(r)  Latch.  168.     Off.  Ex.  65. 


(1)  The  executors  of  a  sheriff  cannot  maintain,  it  seems,  a  special  action  on  the 
case  against  a  gaoler  or  deputy  sheriff,  for  a  voluntary  escape,  the  gaoler  being 
responsible  only  in  assumpsit  on  his  implied  undertaking  to  serve  the  sheriff  with 
fidelity.     Kain,  Ex.  v.  Ostrarider,  8  Johns.  Rep.  159. 

(2)  Paine  v.  V 'liner,  7  Mass.  Rep.  317. 


435  OF  REMEDIES  FOR  [BOOK   III. 

have  such  writ  to  reverse  the  testator's  attainder  of  high  treason, 
inasmuch  as  the  executor  is  privy  to  the  judgment,  and  may  be 
damnified  by  it;  but,  on  the  other  hand,  it  has  been  insisted,  that  though 
the  reversal  restore  the  blood  and  land,  it  is  of  no  avail  to  the  ex- 
ecutor, since  the  goods  are  forfeited  by  the  conviction,  and  not  by 
[436]  the  attainder  (g-).  An  executor  is  likewise  entitled  to  remedies 
by  action  of  deceit,  by  audita  querela,  or  identitate  nominis  (h). 

He  may  also  sue  in  that  character  in  a  court  of  conscience  (i). 

And  by  the  stat.  11  Geo.  2.c.  19.  s.  15.  (1)  above  referred  to  (A1), 
an  executor  of  tenant  for  life,  on  whose  death  any  lease  determined, 
shall  in  an  action  on  the  case  recover  of  the  lessee  a  just  proportion 
of  rent  from  the  last  day  of  payment  to  the  death  of  such  lessor. 

But  an  executor  has  no  right  to  an  action  for  an  injury  to  the  per- 
son of  the  testator  ;  (2)  as  for  a  battery,  (3)  imprisonment,  or  the 
like  (/)  :  nor  for  a  breach  of  promise  of  marriage,  where  no  special 
damage  is  alleged  (m)  :  (4)  nor  for  a  prejudice  to  his  freehold  ;  as 
for  felling  his  wood,  or  cutting  and  carrying  away  his  grass  ;  for 
wood  and  grass  growing  are  parcel  of  the  freehold  (n),  and  conse- 
quently in  such  case  the  heir,  and  not  the  executor,  is  the  party  in- 
jured. Yet,  if  the  lord  of  a  manor  assess  a  fine  on  a  copyholder  for 
his  admittance,  and  die,  his  executor  may  bring  an  action  for  it ; 
for  it  does  not  depend  on  the  inheritance,  but  is  like  a  fruit  fal- 
len (o). 

[437]  The  executor  may  also  in  right  of  the  testator  maintain 
actions,  the  cause  of  which  accrued  after  the  testator's  death  (p)  ; 
as  in  case  a  bond  given  to  the  testator  be  forfeited  after  that  event  (</)  ; 
or  a  personal  covenant  entered  into  with  the  testator  be  broken  (rjj 
or  a  debt  on  any  other  species  of  contract  made  with  him  become 

(g)  King  v.  Ayloff,  2  Salk.  295.  pi.  Off.  Ex.  67,  68. 

1.  Vid.  4  131.  Com.  387.  (o)  3  Bac.   Abr.  92.      Le  Mason  v. 

(A)  Latch.  167.  Off.  Ex.  71.    3  Bac.  Dixon,    Garth.    90.      Shuttleworth    v. 

Abr.  60.  Garnet,    3  Mod.  239.      S.    C.    3    Lev. 

(i)  Dougl.  246.  261.     S.  C  Comb.  151.     S.  C.  Show. 

(k)  Supr.  208.  35.     Evelyn    v.    Chichester,    3    Burr. 

(l)  Com.  Dig.  Admon.  B.  18.   Latch.  1717.  accord. 

168,169.     1  Anders.  243.     Le  Mason  (p)  Com. Dig.  Pleader,  2D.  1.  Anon. 

v.  Dixon,  Jon. 174.  3  Leon.  212. 

(m)    Chamberlain  v.   Williamson,   2  (7)  3  Bac.  Abr.  93.  1  Roll.  Abr.  602. 

Man.  &.  Sel.  408.  (■>•)  Off.  Ex.  82.     11  Yin.  Abr.  231. 

(?»)  Emerson  v.  Emerson,   1  Ventr.  L'.'of  Ni.  Pri.  158. 
187.     Le    Mason  v.    Dixon,  Jon.  174. 


(1)  The  14th  and  15th  sections  of  this  statute  are  in  force  in  Pennsylvania. 
3  Binn.  626.     Roberts'  Dig.  236. 

(2)  "  Suppose  the  case  of  a  physician  or  surgeon,  who  by  unskilful  treatment 
injures  the  health  of  a  patient — it  will  hardly  'JC  contended,  that  "Hi  case  of  death, 
the  cause  of  action  would  survive.      Per  Ttlghman,  C.  J.  13  Serg.  &.  Rawle,  185. 

(3)  Miller  v.  Umbefunoer,   10  &erg.  &  Rawle,  31. 

(4)  Laftimore  v.  Rogers,  13-  Serg.  &  Rawle,  183. 


CHAP.  X.]  EXECUTORS  AT  LAW.  437 

payable  (s)  ;  or  his  goods  be  taken  (t)  ;  (I)  or  trespass  committed 
on  bis  leasehold  premises  (u)  ;  (2)  in  all  these,  and  the  like  instan- 
ces, the  executor,  in  his  representative  capacity,  is  entitled  to  a  re- 
medy by  action. 

So,  if  the  testator  died  possessed  of  a  term  for  years  in  an  advow- 
son,  it  vests,  as  we  have  seen  (to),  in  his  executor  ;  and  therefore, 
in  case  of  his  being  disturbed,  he  may  maintain  a  quure  impedit  (x). 
So  an  executor  may  have  an  action  of  replevin  for  goods  taken  after 
the  death  of  the  testator  (y ).  An  executor  may  also  avow  for  rent 
accrued  due  after  that  time,  as  incident  to  a  reversion  for  years, 
which  vested  in  him  in  that  character  (z). 

[438]  If  a  defendant  in  execution  on  a  judgment  recovered  by 
the  testator,  escape  after  the  testator's  death,  the  executor  shall 
have  an  action  against  the  sheriff  for  the  escape  (a)  ;  as  he  shall  al- 
so in  case  the  defendant  were  in  execution  on  a  judgment  recovered 
by  him  as  executor  (b).  (3) 

So  a  bail-bond  may  be  assigned  to  the  executor  of  a  deceased 
plaintiff,  and  he  may  bring  an  action  upon  it  (c)  :  or  a  bill  of  ex- 
change may  be  endorsed  to  A.  as  executor,  and  he  may  in  that 
character  maintain  an  action  on  the  bill  against  the  acceptor  (d).  (4) 
And  in  like  manner  an  executor  may  bring  an  action  on  any  other 
contract  made  with  him  in  his  representative  capacity  (e).  (5) 

An  executor  may  hold  to  bail  on  an  affidavit  of  his  belief  of  the 
existence  of  the  debt,  for  the  nature  of  his  situation  will  not  admit 
of  his  being  more  positive  {/).     Therefore,  if  an  executor' swear 

(*)  King  v.  Stevenson,  1  Term  Rep.  11  Vin.  Abr.  204.     Duncomb  v.  "Wal- 

487.     Munt  v.  Stokes,    4  Term  Rep.  ter,  2  Show.  254.     Vid.  supr.  434. 
565.    'Com.  Dig.  Pleader,    2  D.  1.     3         («)    3  Bac.  Abr.  57.     Off.  Ex.  46, 

Bac.  Abr.  94.     Reg.  140.     5  Co.  31  b.  Godb.  262.     Vid.  supr.  435. 
Smith  v.   Norfolk,  Cro.   Car.  225.  Fre-         (b)   Slingsby  v.  Lambert,  1  Roll.  Rep, 

vin  v.  Paynton,  1  Lev.  250.  276.     Wate  v.  Briggs,   1  Lord  Raym. 

(/)  4  Bac.  Abr.  93.  in  note  94.  1  Roll.  35.     Bonafous  v.  Walker,  2  Term  Rep. 

Abr.    602.      Lane,      88.      Jenkins    v.  128. 
Plombe,  6  Mod.  92.  (c)  Fortes.  370. 

(«)  Com,  Dig.  Admon.  B.  13.     Off.         (d)  King  v.  Stevenson,  1  Term  Rep, 

Ex.  70.  487. 

(w)  Vid.  supr.  139.  "    0)  Com.  Dig.  Pleader,  2  D.  1.     Cro. 

(x)  Off.  Ex.  36.  Car.  685.    Roll.  Abr.  602.    3  Bac.  Abr. 

(y)  Ibid.  93. 

(;)  Com.  Dig.  Admon.  B.  9.-  Wank-         (/)  Mackenzie  V.Mackenzie,  1  Term 

ford  v.  Wankford,    1  Salk.  302.  307.  Rep.  716.     3  Bac.  Abr.  101. 

(1)  Carlisle  v.  Barley,  3  Greenl.  Rep.  250. 

(2)  An  administrator  may  maintain  trespass  for  an  injury  to  personal  property' 
committed  after  the  death  of  the  intestate,  and  before  administration  granted. 
Hutching  v.  Mams,  3  Greenl.  Rep.  174. 

(3)  After  a  judgment  recovered  in  a  suit  by  an  administrator,  the  debt  is  due 
to  the  plaintiff  in  his  personal  capacity,  and  inaction  of  debt  upon  it  he  may  de- 
clare that  the  debt  is  due  to  himself.    Biddle  v.  Wilkins,  1  Peters'  S.  C.  Rep.  686. 

(4)  So  he  may  sue  in  his  own  name,  or  as  executor,  upon  a  note  made  pay- 
able to  a  third  person  or  bearer,  and  transferred  to  his  testator  before  his  deulh, 
Brooks  v.  Floyd,  2  M'Cord's  Rep.  364. 

(5)  Jyres  v.  Tolund,  7  Harr.  Jk  Johns.  Rep.  3. 


438  OF  REMEDIES  FOR  [liOOK  III. 

to  the  books  of  the  testator,  and  that  he  believes  them  to  contain  a 
true  account,  and  the  debt  to  be  still  unpaid,  it  shall  be  sufficient  (g). 
But  an  affidavit  by  an  executor,  that  the  defendant  was  indebted 
to  his  testator  in  fifty  pounds  as  appears  by  the  testator's  books, 
was  held  defective,  and  common  bail  ordered  (h).  And  so  was 
an  affidavit  by  an  executor  bf  a  debt  due  to  his  testator,  "as  ap- 
pears from  a  statement  made  from  the  testator's  books,  by  an  ac- 
countant employed  by  the  deponent  (*')." 

[439]  It  is  a  general  rule,  that  an  executor,  when  plaintiff,  shall 
pay  no  costs,  either  on  a  nonsuit  or  verdict,  for  he  sues  in  outer 
droit,  and  the  law  does  not  presume  him  to  be  sufficiently  cogni- 
sant of  the  nature  and  foundation  of  the  claims  he  has  to  assert  \k\ 
Therefore,  if  an  executor  bring  an  action  of  trover  on  a  conversion 
in  the  testator's  lifetime,  he  shall  not  be  liable  to  costs  (/).  Nor 
shall  he  be  liable  if  the  trover  were  in  the  testator's  lifetime  and 
the  conversion,  after  his  death  (m).  Nor  shall  he  pay  costs  in  an 
action  for  a  debt"  due  to  the  testator  in  his  lifetime  (n).  Nor  in  an 
action  for  a  debt  due  on  a  contract  made  with  the  testator,  which 
became  payable  after  his  death  (o).  Nor  shall  an  executor  be  sub- 
ject to  costs  on  a  writ  of  error  on  a  judgment  recovered  against  the 
testator  (p)  ;  for,  in  all  these  instances,  it  is  necessary  for  him  to 
sue  in  his  representative  character,  and  expressly  to  name  himself 
executor.  But  if  he  reside  abroad  and  commence  an  action,  the 
court  will  require  him  to  give  security  for  costs,  although  he  sue  in 
the  capacity  of  executor  (q).  Where  a  plaintiff  sued  as  executor 
and  was  nonsuited,  upon  evidence  given  at  the  trial  that'the  sup- 
posed testator  was  still  alive  :  the  Court  of  King's  Bench  refused 
to  allow  costs  to  the  defendant,  it  appearing  from  affidavits  on  both 
sides  to  be  still  at  least  doubtful  whether  the  supposed  testator  were 
living  or  not  (r).  But  if  he  may  bring  the  action  in  his  private 
capacity,  there,  if  he  fail,  he  shall  be  liable  to  costs  ;  as  in  an  ac- 
tion for  trover  and  conversion  subsequent  to  the  testator's  death  (s) : 
[440]  Or  if  he  bring  an  action  for  money  belonging  to  the  testator's 

O)  1  Cromp.  Prac  40.  (»)  Ibid. 

(A)  1  Cromp.  Prac.  40.    Walrond  v.  (o)  Anon.  1  Ventr.  92.    1  H.  BI.  528. 

Fransham,  Stra.  1219.  Portman  v.   Cane,  2  Ld.  Raym.   1413. 

(»)    Rowney  v.  Dean,  1  Price  Rep.  S.  C.  Stra.  682.     Yid.  Cockerill  v.  Ky- 

402.  naston,  4  Term  Rep.  278. 

(k)  2  Bac.  Abr.  46.  3  Bac.  Abr.  100.  (p)  Gale  v.  Till,  3  Lev.  375.     Yid. 

Cro.  Jac.    228.     Anon.  Yelv.   168.     1  Cockerill    v.    Kynaston,  4  Term  Rep. 

Roll.  Rep.    63.      Gale  v.  Till,.    Carth.  280. 

281.     S.  C.  4  Mod.  244.     S.  C.  3  Lev.  .       (?)  Chevalier   v.  Finnis,    3  Moore's 

375.     Skin.  400.      Portman    v.  Crime,  Rep.  602. 

Stra.    682.     3  Bl.   Com.  400.     Tidd's  (?•)  Zachariah  v.  Page,  1  Barn,  and 

Practice,    B.    R.    894.     tFetherston  v.  Aid.  386. 

Allvbon,  Cro.  Eliz.  503.     2  Bvdst.  261.  (s)    3  Bac.  Abr.    100.     Savil.    134. 

Jenkins  v.  Plumbe,  1  Salk.  207.    Eaves  Latch.  220.    Anon.  1  Ventr.  92.    Hutt. 

v.  Mocatb,  ib.  314.      H&wes  v.  Saun-  78.     Salk.  3,  4.     Bollard  v.    Spencer, 

ders,  3  Burr.  1586.     Say.  Costs.  97.  ,  7  Term   Rep.  358.     Vid.  Cockerill  v. 

(I)   Cockerill  v.  Kynaston,   4  Term  Kynaston,    4  Term   Kep.    279.     Hollis 

Rep:  277.  v.  Smith,  10  East.  293, 

(#11)  Ibid. 


CHAP.  X.]  EXECUTORS  AT  LAW.  440 

estate,  had  and  received  by  the  defendant  after  the  death  of  the  tes- 
tator (/)  :  Or  if  he  bring  an  action  on  a  bond  executed  to  him  by  the 
defendant,  for  securing  a  debt  due  to  the  testator  by  simple  con- 
tract (w)  :  Or  if  he  fail  by  his  own  mispleading  (iv)  :  Or  if  he  bring 
a  writ  of  error  wher*e  he  was  liable  to  costs  in  the  original  action  (a*): 
(1)  In  all  these  cases  the  cause  of  action  accrues  to  him  personally; 
and,  therefore,  like  every  other  plaintiff,  he  shall  be  subject  to  costs. 
Nor  shall  he  be  exempt  by  naming  himself  executor  in  an  action, 
when  there  is  no  necessity'  to  do  so  :  otherwise  he  may  in  all  cases 
indiscriminately  evade  the  payment  of  costs  (y).  If  in  an  action  at 
the  suit  of  the  executor,  the  defendant  pay  money  into  court,  the 
effect  of  it  will  not  be  to  make  the  plaintiff  liable  to  pay,  but  only  to 
lose  his  costs,  in  case  he  proceed,  and  fail  to  recover  a  farther  sum  (z). 

An  executor  is  subject  to  costs  on  a  judgment  of  no?ipros(a). (2) 
And  where  he  has  knowingly  brought  a  wrong  action,  or  other- 
wise been  guilty  of  a  wilful  default,  he  shall  pay  costs  on  a  discon- 
tinuance (b) :  or  for  not  proceeding  to  trial  according  to  notice  (c); 
(3)  but  generally  he  is  not  liable  to  costs  in  either  of  those  two 
[441]  cases((/).(4)  Nor  where  he  sues  merely  in  aider  droit  is  he 
subject  to  costs  on  a  judgment,  as  in  case  of  a  nonsuit  (e). 

Nor  is  it  necessary  for  the  executor  or  administrator  of  an  attor- 
ney to  deliver  a  bill  of  costs  for  business  done  by  the  deceased  be- 
fore the  commencement  of  an  action  :  for  the  stat.  2  Geo.  2.  c.  23. 
§  23.  is  confined  to  actions  brought  by  the  attorney  himself,  and  ex- 
tends not  to  his  personal  representative  {/).     And  the  Court  of 

(t)  Goldthwayte  v.  Petrie,   5  Term  Saunders,     3   Burr.    1584.      Iliggs   v. 

Rep.  234.    Vid.  also  Smith  v.  Barrow,  Warry,  6  Term  Rep.  654. 

2  Term  Rep.  477.  (b)  Tidd's  Prac.  B.  R.  606,  607.  895. 

(u)    Vid.    Cockerill  v.  Kynaston,    4  Ca.   Pr.  C.  B.  79.     Harris  v.  Jones,  3 

Term  Rep.  280.  Burr.  1451.     S.  C.  1  Bl.  Rep.  451.  ' 

(w)   Higgs  v.   Warry,  6  Term  Rep.  (c")  Ca.  Prac.  C.  B.  158.     Hawes  v. 

654.  Saunders,  3  Burr.  1585.     1  H.  Bl.  217. 

(x)  1  H.  Bl.  Rep.  566.  {eO.Baynham  v.  Matthews,    2   Stra. 

(y)  3  Bac.   Abr.  100.    Jones  v.  Wil-  871.     Barnes,  133.     Bennet  v.  Coker, 

son,   11  Mod.  256.     Vid.    Cockerill  v.  4  Burr.  1927.     Say.  Costs.  96,  97. 

Kynaston,  4  Term  Rep.  280.  (e)  Tidd's  Prac'  B.  R.  694.     Bennet 

(z)  3  Bac.  Abr.  100.      Gregg's  case,  v.  Coker,  4  Burn.  1928.     Barnes,  130. 

2  Salk.  596.     Cruchfield    v.    Scott,  2  Booth  v.  Holt,  2  H.  Bl.  277. 

Stra.  796.  (/)  Tidd's  Prac.  B.  R.  919.    1  Bar- 

(«)  Tidd's  Prac.  B.  R.  379,  380.  895.  nard.   K.  B.  433.  Andr:  276.     Ca.  Prac. 

Ca.  Pr.  C.  B.  14.  157,  158.     Hawes  v.  C.  B.  58. 


(1)  An  executor  or  administrator  is  liable  for  costs  in  error  only  in  cases  where 
he  would  be  subject  to  costs  in  the  court  below.  Gleason  v.  Clark,  Adm.  1  Wend. 
Rep. 303. 

(2)  Rudd  et  al.  Ex.  v.  Long,  4  Johns.  Rep.  190,  2d  edit. ;. and  the  reporter's 
note.     Contra,  Frink  v.  Luytcu,  Vanderosl's  Ex.  v.  JJ'/iitncr,  2  Bay,  166,  399. 

(3)  Per  Curiam,  2  Bay,  400.  Brown,  Ex.  v.  Lambert,  15  Johns.  Rep.  148. 
So  also  in  the  case  of  a  scire  facias  to  revive  a  judgment  obtained  by  the  testator, 
an  executor  is  liable  to  the  costs  of  a  nonpros  for  not  proceeding  to  trial.  Hoge- 
boom,  Ex.  v.  Clark,  17  Johns.  Rep.  268.  So  also  the  costs  of  an  unsupported 
action.     Hardy  v.  <  'all,  16  Mass.  Rep.  530. 

(4)  Musser,  .idm.  v.  Good,  11  Serg.  &  Rawle,  247. 


441  OF  REMEDIES  TOR  [BOOK  III. 

Common  Pleas  will  not  suffer  such  a  bill  to  be  taxed  (#).  But  in 
the  Court  of  King's  Bench  the  practice  is  different ;  lor  there  the 
bill  may  be  referred  to  be  taxed,  on  the  defendant's  undertaking  to 
pay  what  is  due  (7i).  Yet  where  an  attorney  delivered  his  bill,  and 
after  his  death  application  was  made  to  tax  it,  and  above  a  sixth 
part  was  taken  off ;  on  motion  that  the  executrix  may  pay  the  costs, 
the  court  held  her  not  to  be  liable,  since  the  act  imposes  them  on 
the  attorney  or  solicitor  only,  and  an  executor  is  not  to  blame  if 
he  stand  on  the  testator's  bill,  or  make  out  one  from  his  books  (i). 

Where  the  plaintiff  dies  after  final  judgment,  and  before  execu- 
[442]  tion,  his  executor  or  administrator  shall  sue  execution  by 
scire  facias  (k).  (1)  If  after  a  fieri  facias  sued  out  the  plaintiff  die, 
the  sheriff  deriving  his  authority  from  the  writ  may  levy  the  mo- 
ney, and  may  pay  it  to  the  executor  ;  or  in  case  the  plaintiff  died 
intestate,  it  shall  be  brought  into  court,  and  remain  there  until  ad- 
ministration be  committed,  when  the  administrator,  on  producing 
the  grant,  shall  receive  it  (/).  So  if  under  a  fieri  facias  the  goods 
are  seized,  and  the  plaintiff  die  before  sale,  and  then  the  goods  are 
sold,  the  executor  or  administrator  shall  have  the  money  ;  nor  shall 
it  be  a  sufficient  return  to  state  that  the  plaintiff  is  dead,  for  that  is 
no  abatement  of  the  writ  (m).  (2) 

At  common  law  the  death  of  the  plaintiff  at  any  time  before  final 
judgment  abated  the  suit  ;  but  by  stat.  17  Car.  2.  c.  8.  (3)  if  either 
party  die  between  verdict  and  judgment,  his  death  shall  not  be  al- 
leged for  error,  so  as  the  judgment  be  entered  within  two  terms  after 
the  verdict  (?i).  In  the  construction  of  this  statute  it  has  been  holden, 
that  the  party's  death  before  the  assizes  is  not  remedied  ;  but  if  he 
die  after  the  assizes  are  commenced,  although  before  the  trial,  that 
[443]  case  is  within  the  act,  for  being  remedial  it  shall  be  constru- 
ed liberally  (o).     The  judgment  on  this  statute  is  entered  as  if  the 

(«•)  Tidd's  Prac.  B.  R.  919.    Barnes,  Nov,  73.  Dyer,  76  b.  Tidd's  Prac.  B. 

1 19.  122.  It.  932,  933. 

(//)  Tidd's  Prac.  B.  R.  919.   Gregg's         (mi)  Cle'rk  v.   Withers,  6  Mod.  297. 

case,   1  Salk.  89.     Weston  v.  Poole,   2  Cleve  v.  Vere,  Cro.  Car.  459.     Harri- 

Stra.  1056.  Say.  Costs.  324,  325.    Imp.  son    v.    Bowden,    1  Sid.  29.      2  Lord 

K.  B.  482.  Raym.  1073. 

(/)  tidd's  Prac.  B.  R.  919.     Wilson         (n)  Tidd's  Prac.  B.    R.  842.    1052, 

v.  Poole,    2   Steal   1056.     Say.    Costs.  1053. 
327.  (o)  Tffid's  Prac.  B.  R.  842.   Anon.  1 

(k)  Com.  Dig1.  Execution,  E.  2  Inst.  Salk.    8.    &  vid.  2  Ld.  Raym.  1415.   in 

295.   See  Tidd's  EraC.  B\  R.  1056.  note.       Jacobs    v.    Miniconi,    7  Term 

(/)    Clerk  v.  Withers,   6  Mod-  297.  Rep.  31. 

(1)  Tn  Pennsylvania,  on  the  death  of  the  plaintiff  after  judgment,  and  the  sug- 
gestion thereof  on  the  record,  his  executor  or  administrator  may  issue  execution 
without  scire  facias.     Dcistr,  Jldni.  v.  Sterling,  10  Serg-.  &  Rawle,  119. 

(2)  In  Pennsylvania  it  is  the  universal  practice  to  issue  a  venditioni  exponas 
after  execution  levied  oirland,  though  both  parties,  plaintiff  and  defendants,  are 
dead,  without  calling  in  their  representatives.  Krider  v.  Deklyne,  Sup.  Court, 
Dec.  Term,  1824,  stated  13  Serg.  8c  Rawle,  147. 

(3)  In  force  in  Pennsylvania,  3  Binn.  624.     Robais'  Dig.  39, 


CHAP.  X.]  EXECUTORS   AT  LAW.  443 

party  were  alive  (o),  and  it  must  be  entered,  or  at  least  signed  (p), 
within  two  terms  after  the  verdict.  But  there  must  be  a  scire  fa- 
cias to  revive  it,  before  execution  can  be  taken  out  (</) ;  and  such 
scire  facias,  pursuing  the  form  of  the  judgment,  should  be  general, 
as  on  a  judgment  recovered  by  or  against  the  party  himself  (?'). 

By  a  subsequent  statute  (s)  if  the  plaintiff  die  after  interlocutory, 
and  before  the  final  judgment,  the  action  shall  not  abate,  if  such  action 
might  originally  have  been  sued  by  his  executor  or  administrator  ; 
but  the  executor  or  administrator  may  have  a  scire  facias  against 
the  defendant ;  or,  if  he  die  after  such  interlocutory  judgment,  against 
his  executor  or  administrator.  And  if  the  defendant,  his  executor 
or  administrator,  appear,  and  shew  no  cause  to  arrest  the  final  judg- 
ment, or  on  a  scire  facias  or  two  niliils,  make  default,  a  writ  of  in- 
quiry shall  go,  and  being  executed  and  returned,  judgment  final 
shall  be  given  against  the  defendant,  or  against  his  executor  or  ad- 
ministrator. This  statute  has  been  held  not  to  extend  to  cases  where 
the  party  dies  before  interlocutory  judgment,  although  it  be  after 
the  expiration  of  the  rule  to  plead  (/). 

Where  either  party  dies  after  interlocutory  judgment,  and  before 
the  execution  of  the  writ  of  inquiry,  the  scire  facias  on  this  statute 
[444]  ought  to  be  for  the  defendant,  or  his  executor  or  administra- 
tor, to  shew  cause  why  the  damages  should  not  be  assessed,  and  re- 
covered against  him  {a),  and  to  hear  the  judgment  of  the  court  there- 
upon (w).  But  where  the  death  happens  after  the  writ  of  inquiry 
is  executed,  and  before  the  return,  the  scire  facias  must  be  to  shew 
cause  why  the  damages  assessed  by  the  jury  should  not  be  adjudg- 
ed to  the  plaintiff  or  his  executor  or  administrator  (x). 

The  judgment  on  this  statute  is  not  entered  for  or  against  the  par- 
ty himself,  as  on  the  stat.  17  Car.  2.,  but  for  or  against  his  executor 
or  administrator  (y).  And  where  the  defendant  dies  after  interlo- 
cutory and  before  final  judgment,  two  writs  of  scire  facias  must  be 
sued  out,  before  he  can  have  an  execution  ;  one  before  the  final 
judgment  is  signed,  in  order  to  make  the  executor  or  administrator 
a  party  to  the  record  :  the  other  after  final  judgment  is  signed,  in 
order  to  give  him  an  opportunity  of  pleading  no  assets,  or  any  other 
matter  of  defence  ;  for  it  were  unreasonable  that  the  situation  of  the 
executor  or  administrator  should  be  worse,  where  the  party  deceas- 
ed died  before  the  final  judgment  was  signed,  than.it  would  have 
been  if  his  death  had  been  subsequent  (z). 

(o)  Weston  v.  James,  Salk.  42.  v.  Irwin,   1  AVils.  315. 

(p)  1  Sid.  385.     Barnes,  261.  (u)  Lil.  Entr.  647. 

(q)  Earl  v.  Brown,  1  Wils.  302.  (iv)  Smith  v.  Harman,  6  Mod.   144. 

(?•)  Colebeck  v.  Peck,  2  Ld.  Havm.         (x)    Goldsworthv    v.    Southcote,     1 

1280.  Wils.  243.  &  vid.  Executors  of  Wright 

0)  Stat.  8  &  9  W.  3.  c.    11.  s.   6.  v.  Nutt,  1  Term  Rep.  388. 
Vid.     Com.    Dig.     Admon.     (G.)    and         (y)  Weston  v.  James,    1  Salk.  42. 
Holiingshcad's  case,  1  P.  Wms.  744.  (c)   Say.  Rep.  266. 

(/)  Tidd's  Prac.  P..  R.  1055.  Wallop 

88 


444  OF  REMEDIES  FOB  [llOOK  III. 

"Whether  an  executor  of  a  deceased  partner  must  or  can  join 
[445]  with  the  survivor  in  an  action  for  goods  carried  away,  or  mo- 
ney had  and  received  in  the  testator's  lifetime,  I  have  already  stat- 
ed to  have  been  a  matter  of  some  doubt  ;  but  it  seems  now  settled 
that  the  latter  must  sue  alone,  as  the  remedy  survives,  although 
there  be  no  survivorship  of  the  duty  (a). 

Before  the  stat.  31  Geo.  3.  c.  87.  an  infant  of  the  age  of  seven- 
teen was  capable  of  taking  out  probate,  and  therefore  of  maintaining 
an  action  as  executor  ;  but,  during  his  minority,  he  was  obliged  to 
sue  by  guardian,  or  procheiu  amy  ;  and  could  not  sue  by  attorney, 
lint  as,  by  this  statute,  probate  shall  not  be  granted  to  him  till  he 
shall  have  attained  the  full  age  of  twenty-one  years  ;  he  cannot  in 
his  representative  capacity  sustain  an  action  before  that  period. 

If  a  married  woman  be  executrix,  the  husband  cannot  sue  in  right 
of  the  testator  without  the  wife  (6). 

An  executor  named  during  the  minority  of  another,  has  the  same 
right  to  bring  actions  as  an  absolute  executor  (c). 

.  [446]  As.  executors,  in  their  representation  of  the  testator,  make 
but  one  person,  they  must  all  join  in  the  bringing  of  actions  in  his 
right  (d)  ;  (1)  although  some  have  omitted  to  prove  the  will,  or 
have  even  refused  before  the  ordinary  (e). 

If  an  infant  be  co-executor  with  other  persons  of  full  age,  he  must, 
I  apprehend,  join  with  them  in  an  action,  and  tbey  shall  all  together 
sue  by  attorney  ;  for  such  was  the  law  before  the  statute  with  regard 
to  an  infant  under  the  age  of  seventeen  (f). 

If  A.  and  B.  be  appointed  executors,  and  A.  refuse  to  join  in  such 
action,  B.  may  commence  the  action  in  the  names  of  them  both  ; 
and  then,  on  summoning  A..,  there  shall  be  judgment,  of  severance  ; 
that  is  to  say,  that  B.  shall  sue  alone  ;  or  on  A.'s  default  on  the 
summons,  there  shall  be  the  same  judgment  ;  and  B.  then  may  pro- 
ceed in  the  action,  and  recover  in  his  own  name  only  :  otherwise, 
a  co-executor  by  collusion  with  the  debtor  might  prevent  his  being 
sued  for  the  debt  (g).  (2)  By  the  death  of  the  party  severed,  the 

(a)  Sutar.  155,  156.  163.  Yid.  sup*.  41,  45. 

\b)  -Com.  Dig.  Admon.  D.    Off.  Ex.  (/)  3  Bac.  Abr.  618.     1  Roll.  Abr. 

207,  208.  288.     Cro.  Eliz..  278.    2  Saund.    Fox- 

(c)    Com.    Dig.    Admon.    F.    Semb.  wist  v.  Tremaine,   212,  213.    S.   C.    1 

Off.  Ex.  215,  216.  Ventr.  102.   S.  C.  1  Sid.  449.     Coan  v. 

(<!)  3  Bac.  Abr.  32.   Off.  Ex.  42.  95.  Bowles,  Garth.  124. 

100.  Godolph.  134.  (g)  3  Bac.  Abr.  33.    Price  v.   Pack- 

(e)  Off.  Ex.  42.     Com.   Dig".  Abate-  hurst,  Cro.   Car.  420.   2  Roll.  Abr.  98. 

ment   E.   13.     Pleader,    2  1).  1.  9  Co.  Off.  Kx.  98,  99. 
37.  Swallow  v.  Emberson,   1  Lev.  161. 


(1)  And  one  administrator  cannot  sue  his  co-administrator,  on  a  bond  executed 
bj  the  latter  to  the  intestate  ;  nor  will  it  enable  him  to  sue  if  he  assign  the  bond 
t<*>  a  creditor  of  the  intestate,  and  obtain  from  him  a  reassignment  to  himself. 
Simon,  Mm.  v.  Albright,  12  Serg\  &  Rawle,  429. 

(2)  If  one  of  two  co-executors  direct  an  appeal,  writ  of  error,  or  supersedeas, 


CHAP.   X.]  EXECUTORS  AT   LAW.  446 

writ  shall  not  abate  (A).  Nor,  if  he  live  till  judgment,  can  he  sue 
out  execution,  because  the  recovery  is  in  the  name  of  the  other  ex- 
ecutor alone  (?'). 

[447]  If  a  judgment  be  recovered  by  two  executors,  and  the  one 
prays  a  capias,  and  the  other  a  fieri  facias  ;  it  has  been  said  the 
capias  shall  be  awarded  as  most  beneficial  for  the  estate  (Jc). 

By  the  stat.  25  E.  3.  c.  5.  (1)  the  executor  of  an  executor  is  put 
on  the  same  footing;  in  regard  to  the  bringingof  actions,  as  an  imme- 
diate executor  (/). 

An  executor  ^/e son  tort  is  not  entitled  to  bring  any  action  in  right 
of  the  deceased.  As  he  comes  in  by  wrong,  he  is  liable  to  all  the 
trouble  of  an  executorship,  without  any  of  its  privileges  (m).  (2) 

An  administrator  may,  in  right  of  his  intestate,  maintain  actions 
in  the  same  manner  as  an  executor  in  right  of  his  testator  (?j). 

All  special  and  limited  administrators  likewise  may  maintain  ac- 
tions in  right  of  their  respective  intestates.  And,  indeed,  the  prin- 
ciple on  which  the  ordinary  has  the  power  of  granting  such  admin- 
istrations, is,  that  there  may  be  a  person  capable  of  recovering  pro- 
perty belonging  to  the  estate  (o). 

[44S]  If  an  administrator  durante  minoritate  bring  an  action 
and  recover,  and  then  his  administration  determine  by  the  executor's 
coming  of  age,  such  executor  may  have  a  scire  facias  on  the  judg- 
ment (p). 

So  if  such  administrator  obtain  judgment,  he  may  bring  a  scire 
facias  against  the  bail,  nor  can  they  object  that  the  executor  has  at- 
tained the  age  of  twenty-one  years  ;  for  the  recognizance  is  to  the 
administrator  himself  by  name  (g).  But  it  seems  to  be  a  question 
whether  in  such  case  he  or  the  executor  shall  sue  out  execution  on 
the  judgment  (r). 

If  there  be  several  administrators,  they  must,  like  co-executors, 
all  join  in  an  action  (s). 

(h)  Anon.  Cro.  Eliz.  652.     Co.  Litt.  (o)  "Walker  v.  Wookston,  2  P.  Wms. 

139.  576.  6  Co.  67  b. 

0')  Off.  Ex.  105,  106.  (p)  3  Bac.    Abr.  18.    1  Roll.    Abr. 

(A-)  3  Bac.  Abr.  33.  in  note.  Foster  888,   889.    Cro.  Car.  127.      Hatton  v. 

v.  Jackson,  Hob.  61.    Vid.  Hudson  v.  Mascal,   1  Lev.  181.  Coke  v.  Hodges, 

Hudson,  1  Atk.  460.  1  Vern.  25. 

(/)  Vid.  Off.  Ex.   257.    Godb.    262.  (q)  3  Bac.  Abr.  18.     Eubrin  v.  Man- 
Cm)    2  Bl.    Com.    507.      Walker  v.  pesson,  2  Lev.  37. 

Wookston,  2  P.   Wins.  583.  vid.  supr.  (r)  lb.  2  Lev.  37." 

366.                                                   •  (s)  Com.    Dig-.    Abatement,   E.    14. 

(n)  Com.   Dig-.  Admon.  B.  13.   Off.  Pleader,  2  D.  10. 

Ex.  259. 

originally  granted  to  them  both,  to  be  dismissed,  the  other  may  proceed  without 
him;  and  since  both  are  before  the  court,  an  order  of  severance  may  be  made  with- 
out a  summons. 

(1)  In  force  in  Pennsylvania.     3  Binn.  611.     Boberts'  Dig.  249. 

(2)  Lee  v.  Wright,  1  Rawle,  151.  Nor  can  he  be  cited  to  account  before  the 
Register.     Peebles'  Appeal,  15  Serg.  &.  Rawle,  41. 


448  OF  REMEDIES  FOR  [llOOK  III. 

An  administrator  de  bonis  non,  claiming  by  title  paramount, 
could  not  at  common  law  have  ascire  facias,  or  otherwise  proceed 
on  a  judgment  recovered  by  an  executor,  or  administrator  (/).  (I) 
But  now  if  a  judgment  after  verdict  be  recovered  by  an  executor  or 
administrator,  in  such  case  an  administrator  de  bonis  non  is  by  star.. 
17  Car.  2.  c.  S.  (2)  entitled  to  sue  a  scire  facias,  and  take  out  ex- 
[449]  ecution  on  such  judgment.  (3)  If  the  executor  or  administra- 
tor die  after  suing  out  the  writ  of  execution  and  before  the  return  of 
it,  the  administrator  de  bonis  non  is,  by  the  equity  of  that  act,  per- 
mitted to  perfect  the  execution  thus  commenced,  for  the  right  is  de- 
volved upon  him  (u).  (4)  And  in  such  case,  if  the  sheriff  return  a 
seizure  of  goods  to  the  value,  but  that  they  remain  in  his  hands^ro 
defectu  emptorem,  the  administrator  de  bonis  non  may  sue  out  a 
venditioni  exponas,  or  distringas  nuper  vice  comitem  {to).  If 
at  the  time  of  the  executor's  or  administrator's  death  the  money  be 
levied,  it  shall  be  brought  into  court,- and  the  administrator  de  bonis 
non,  on  producing  the  letters  of  administration,  shall  be  entitled  to 
receive  it  (x).  But  if  an  executor  bring  a  scire  facias  on  a  judg- 
ment, or  recognizance,  and  getjudgment  quod  habeat  executionem, 
and  die  intestate,  the  administrator  de  bonis  non  must  bring  a  scire 
facias  on  the  final  judgment,  and  cannot  proceed  in  the  judgment 
on  the  scire  facias  (y).  The  statute  extends  only  to  judgments  af- 
ter verdict  (z).  On  any  other  judgment  obtained  by  the  executor 
or  administrator,  the  administrator  debonis  non  shall  nothave  a  scire 
facias  for  want  of  privity,  but  must  resort  to  his  remedy  at  common 
law,  by  an  action  of  debt  de  novo  for  the  same  demand,  as  adminis- 
[450]  trator  to  the  first  testator  or  intestate  (a),  Yet  even  on  a 
judgment  by  default,  if  the  executor  or  administrator  sue  out  exe- 
cution and  die  when  the  goods  are  in  the  hands  of  the  sheriff",  and 
consequently  the  writ  is  completely  executed,  the  administrator  cfe 

(/)  Com.  Dig1.  Admon.   G.  Levct  v.  2  Ld.  Raym.  1074. 

Lcwkenor,  Moore,  4.    Tate    v.    Goth,  (x)  Ibid.  6  .Mod.  299,  300.  ib.   2  Ld. 

ib.  680.  Cro.  Jac.  4.   1  Roll.  Abr.  890.  Raym.  1074,  1076. 

Norgate    v.    Snape,    Wm.  Jones,  214.  (y)  Tidd's  Prac.  B.  R.  1058.     Trevi- 

Snape    v.    Norgate,     Cro.     Car.     167.  ban  v.  Lawrence,  2  Ld.  Raym.  1049. 

Tidd's  Prac.  B.  R.  1057.  (z)  Clerk  v.  Withers,   6  Mod.  296, 

(m)  Com.  Dig.  Admon.  G.   Clerk  v.  297. 

Withers,   1  Balk.  322.     S.   C.     6  Mod.  («)  See  Com.   Dig.   Admon.  (i.  Le- 

290.  S.  C.  2  Ld.  Raym.  1072.     Vid.   1  vet  v.   Lewkenor,  Moore,  4.     Yaites  v. 

Sid.  29.  Gbugh,    680.     Cro.   Jac.  4.     Yaites  v. 

(u>)  Clerk  v.  WithegS,  1  Salk.  323.  Cough*,  Yelv.  53.  5  Co.  9  b. 
S.  C.  6  Mod.  295.  297,  298,  299.  S.  C. 


(1  )    Grout,  Adm.  v.  Chamberlin,  4  Mass  Rep.  611.  ace. 

(2)  In  force  in  Pennsylvania.    3  B'mn.  624.    .Roberts'  Dig.  369.     See  also  Dale 
v.  Roosevelt,  8  Cow.  Rep.  "33.     Dykes  v.  Wooihouse>s  Mm.  3  Rand.  Rep.  287. 

(3)  Or  maintain  an  action  of  debt  upon  it.    Dykes  v.  Ji'oodhouse's  Adm.  3  Rand. 
Rep. 287. 

(1)  So  he  may  have  a  writ  of  error  on  a  judgment  against  a  previous  executor 
or  administrator.     Dak  v.  Roosevelt,  8  Cow.  Rep.  333. 


CHAP.  X.]  EXECUTORS  AT  LAW.  450 

bonis  non  shall  have  the  money  brought  into  court,  and  on  shewing 
the  grant  it  shall  be  paid  over  to  him  {b).  Or  if  the  judgment  by 
default  be  for  goods  taken  out  of  the  executor's  or  administrator's 
own  possession,  his  executor  or  administrator  shall  have  a  scire  fa- 
cias upon  it,  and  account  for  them  to  the  administrator  de  bonis 
non  (c).  (1) 

In  case  a  party  died  seised  of  a  rent-service,  rent-charge,  rent- 
seek,  or  fee-farm,  in  fee-simple,  fee-tail,  or  per  auter  vie  in  the 
lifetime  of  cestui  que  vie,  the  common  law  afforded  no  remedy  to 
recover  the  arrears  due  at  the  time  when  the  owner  of  such  rents 
died.  It  was  therefore  enacted  by  the  stat.  32  H.  8.  c.  37.  (d),  that 
the  executors  and*  administrators  of  tenants  in  fee,  fee-tail,  or  for 
life,  of  such. rents,  may  have  an  action  of  debt  for  all  such-arrears, 
or  may  distrain  for  the  same  upon  the  lands  chargeable,  so  long  as 
they  remain  in  the  possession  of  the  tenant  who  ought  to  have  paid 
the  rents  ;  or  of  any  other  person  claiming  under  him  by  purchase, 
gift,  or  descent.  The  statute  also  provides,  that  a  tenant  per  auter 
vie,  his  executors  and  administrators,  may,  after  the  death  of  cestui 
que  vie,  have  an  action  of  debt,  or  may  distrain  for  such  arrears  in- 
[451]  curred  in  the  lifetime  of  cestui  que  vie. 

Before  the  passing  of  this  act,  the  inconvenience  did  not  exist  to 
the  same  extent,  in  regard  to  the  executor  of  tenant  for  his  own 
life,  or  to  the  executor  of  tenant  per  auter  vie  after  the  death  of 
cestui  que  vie :  for  by  the  common  law  an  executor  in  either  of 
those  cases  had  a  remedy,  by  action  of  debt,  for  the  a'rrears  of  rent 
which  had  accrued  in  the  lifetime  of  the  testator  (e).  But  it  has 
been  adjudged,  that  the  statute,  being  remedial,  applies  to  the  execu- 
tors of  all  tenants  for  life  ;  not  merely  to  such  executors  as  previous- 
ly to  the  statute  had  no  remedy  whatever,  but  also  to  those  who 
were  entitled  to  an  action  of  debt,  to  whom,  therefore,  it  gives 
merely  the  additional  remedy  of  distress  (/).  Yet,  although  the 
executors  of  all  tenants  for  life  be  authorized  by  the. statute  to  dis- 
train for  such  arrears  (g),  it  seems  that  rent  reserved  on  a  lease  for 
years  is  not  within  its  provisions,  inasmuch  as  the  landlord  is  not 
tenant  in  fee,  fee-tail,  or  for  life,  of  such  a  rent ;  and  the  executors 

(b)  Clerk  v.  Withers,  6  Mod.  299,  (/)  Harg.  Co.  Litt.  162  b.  note. 
300.  Hcrol  v.  Bell,  1  Ld.  Raym.  172.     Cro. 

(c)  Yaites  v.  Gough,  Yelv.  33.  Eliz.   322.    L.  of  Ni.  Pri.  5th  edit.  55. 

(d)  Vid.  3  Bac.  Abr.  91.  2  Bac.  Abr.  Gilb.  L.  of  Distress,  3d  edit.  33.  Sed 
282,  in  note.     4  Burn.  Eccl.  L.  268.  vid.  Cro.  Car.  471. 

(e)  Harg.  Co.  Litt.  162,  note  4.  Gilb.  (g)  Hool  v.  Bell,  1  Ld.  Raym.  172. 
L.  of  Distress,  3d  edit.  33. 


(1)  An  administrator  de  bonis  non  cannot  sue  the  representative  of  a  former  ex- 
ecutor or  administrator,  either  at  law  or  in  equity,  for  assets  wasted  or  converted 
by  the  first  executor  or  administrator;  such  suit  may  be  brought  directly  by  credi- 
tors, legatees  or  distributees.     Coleman,  Mm,,  v.  M'Murdo,  5  Rand.  Rep.  51. 


4^)1  OF  REMEDIES  FOR  [BOOK  111. 

of  such  tenarfts  only  are  mentioned  in  the  act  (A).  However,  in 
trespass,  where  it  appeared  the  defendant  had  distrained  the  plain- 
tiff's goods  for  rent  due  to  his  testator  on  a  lease  for  years,  Lee, 
C.  J.  held  it  to  be  comprehended  by  the  statute,  and  the  defendant 
obtained  a  verdict  (i). 

Nor  does  the  statute  extend  to  the  executor  of  the  grantee  of  a 
rent-cbarge  for  a  term  of  years,  if  he  so  long  live  (&)  ;  nor  to  copy- 
hold rents,  but  only  to  rents  out  of  free  land  (/). 

But  the  executor  of  an  executor  is  held  to  be  within  the  equity 
of  this  statute  (rn). 

An  executor  may  also  prove  a  debt  due  to  the  testator  under  a 
commission  of  bankruptcy  (n). 

A  commission  was  taken  out  by  an  executor  before  he  had  ob- 
tained probate.  Probate  was  afterwards  obtained  ori  the  5th  of 
March,  1817,  and  the  adjudication  of  the  bankruptcy  was  on  the 
8th  of  March  following,  and  the  commission  was  held  valid  (o). 

In  case  a  commission  has  been  superseded,  the  executors  of  the 
party,  against  whom  it  issued,  may  take  out  a  commission  for  a  debt 
due  to  him  ;  but  if  it  has  not  been  superseded,  they  have  no  such 
right ;  for  the  debt  having  vested  in  his  assignees,  the  executors 
are  incapable  of  being  the  petitioning  creditors  (/?). 

Executors,  in  their  representative  character,  may  sign  a  bank- 
rupt's certificate  (q).  And  even  where  the  bankrupt's  father,  be- 
[453]  ing  principal  creditor,  chose  himself  sole  assignee,  and  dying 
intestate,  the  bankrupt,  as  his  representative,  chose  himself  assignee, 
and  signed  his  own  certificate,  it  was  held  regular  (r).  But  an  ex- 
ecutor, who  has  also  a  claim  in  his  own  right,  cannot  sign  in  both 
capacities  (s). 

'If a  bankrupt's  estate  pay  a  clear  dividend  often  shillings  in  the 
pound,  and  he  obtain  his  certificate  under  the  commission,  his  re- 
presentatives are  entitled  to  the  allowance  (/). 

By  the  stat.  19  Geo.  2.  c.  37.  s.  4.  it  is  enacted,  that  in  case  an 
assurer  shall  die,  his  executors  or  administrators  may  make  re-assur- 
ance to  the  amount  before  by  him  assured,  provided  it  be  expressed 
in  the  policy  to  be  a  re-assurance  :  and  thus  a  fund  may  be  secured 
to  satisfy  the  insured  in  case  of- a  loss,  without  its  falling  on  the  es- 
tate of  the  deceased. 

In  case  of  the  death  of  a  person  insured  against  fire,  the  policy 

(k)  L.  of  Ni.  Pri.  5th  edit.  57.   Glib.  (o)  Ex  parte  Paddy  in  re  Drakely, 

L.  of  Distress,  3d  edit.  34.  3  Madd.  Rep.  241.  and  see  Rogers  v. 

(i)  Powel  v.  Killick,  at  Westminster,  James,  2  Marshall,  425. 

M.  25  Geo.  2.  (p)  Ex  parte  Goodwin,   1  Atk.  100. 

(k)  L.  of  Ni.  Pri.  5th  edit.  57.  (?)  Whitmarsh's  B.  L.  2d  edit.  356. 

(/)  2  Bac.  Abr.  282,  in  note.    Apple-  1  Atk.  85. 

ton    v.    Doily,    Yelv.     135.     Sed    vid.  (r)  Ibid.  Green,  260. 

Carth.  91.  (V)  Ex  parte  Sansmerez,   1  Atk.  85. 

(m)  Off.  Ex.258.  (0  Whitmarsh's  B.  L.  2d  edit.  351. 

O)    Ex  parte  English,  2  Bro.    Ch.  Ex  parte  Calcot,  1  Atk.  208,  209.  S.  C. 

Kep.  610.  3  Atk.  814. 


CHAP.   X.]  EXECUTORS    AT    LAW.  453 

of  insurance  and  interest  therein  shall  continue  to  his  heir,  executor, 
or  administrator  respectively,  to  whom  the  property  insured  shall 
belong,  provided,  before  any  new  payment  be  made,  such  heir,  ex- 
ecutor, or  administrator  shall  procure  his  right  to  be  indorsed  on 
the  policy  at  the  office,  or  the  premium  be  paid  in  the  name  of  the 
heir,  executor,  or  administrator  (u). 


[454]  Sect.  II. 
Of  remedies  for  executors  and  administrators  in  equity. 

An  executor  or  administrator  is  also  entitled  to  all  the  equitable 
interests  of  the  deceased,  and  may,  in  his  representative  capacity, 
enforce  them  in  a  court  of  equity  (a). 

Such  interest  vested  in  the  testator  shall  vest  in  the  executor,  al- 
though he  be  not  named  :  as  if  a  legacy  be  given  to  A.,  and  if  he 
die  underage,  to  B.  and  C-,  or  the  survivor  of  them  ;  and  first  B. 
die,  then  C,  and  lastly  A.  die  under  age,  the  legacy  shall  be  decreed 
to  the  executor  of  C.  who  survived  B.  (6). 

Partners  in  trade  are  interested  in  the  whole  stock  and  effects, 
not  merely  in  that  particular  stock  in  being  at  the  time  of  entering 
the  partnership,  but  continue  so  through  all  its  changes.  In  case 
of  the  death  of  one  partner,  his  interest,  as  we  have  seen  (c),  at  law 
vests  in  his  representatives,  and  shall  not  survive  to  the  other,  al- 
though the  legal  remedy  survive  :  in  equity,  the  survivor  is  regard- 
ed als  a  trustee  for  them,  on  which  footing  the  account  shall  be  ta- 
ken, nor  any  thing  considered  as  his  share  till  after  it :  inasmuch 
[455]  as  the  property  in -the  stock  continues  in  such  representatives: 
and  they  have  a  specific  lien  upon  it,  although  the  survivor  should 
afterwards  die,  or  become  bankrupt  (d).  The  representatives  of  a 
deceased  partner,  or  the  assignees  of  a  bankrupt  partner,  are  not, 
strictly  speaking,  partners  with  the  survivor,  or  the  solvent  partner; 
but,  in  either  case,  that  community  of  interest  still  subsists,  which 
is  necessary  till  the  affairs  are  wound  up,  and  which  requires  that 
what  was  partnership  property  before,  shall  continue-so  for  the  pur- 
pose of  distribution,  according  to  the  rights  of  the  partners  (e).  (1) 

(u)  Park  on  Insurance,  449,  5th  ed.  2  Ventr.  347. 

(a)  Vid.  Com.  Dig.  Chancery,  2  B.  (c)  Supr.  155,  156.  163. 

1.     3  G.  1.  (r/)  West  v.  Skip,   1  Ves.  242. 

(5)  Com.  Dig.  Chancery,  3  G.  Anon.  (e)  Ex  parte  Williams,  11  Ves.jun.  5. 


(1)  In  Pennsylvania,  when  a  surviving-  partner  dies  indebted  to  partnership 
and  separate  creditors,  and  leaving  in  the  hands  of  his  administrator  joint  property 
and  also  separate  property,  his  whole  estate,  that  is  to  say,  his  whole  separate 


455  OF  REMEDIES  FOR  [BOOK  III. 

If,  pending  a  suit,  the  plaintiff  die,  his  executor  may  continue  it 
by  bill  of  revivor,  and  have  the  full  benefit  of  the  proceedings  (/)■ 

The  executor  of  a  person  having  written  private  letters  to  J.  S. 
may  maintain  a  bill  in  equity  to  restrain  J.  S.  or  his  representatives 
from  publishing  them  without  the  leaveof  the  plaintiff  (g). 

If  the  executor  find  the  affairs  of  the  testator  so  complicated,  as 
to  render  the  administering  of  the  estate  unsafe,  he  may  institute  a 
suit  against  the  creditors,  for  the  purpose  of  having  their  several 
claims  adjusted  by  the  decree  of  the  court  (h).  But  such  bill  will 
not  entitle  him  to  an  injunction  to  restrain  any  creditor  from  pro- 
ceeding against  him  at  law  :  for  that  purpose,  it  is  necessary  that 
there  be  a  suit  and  decree,  by  and  on  behalf  of  the  creditors  of  the 
testator  (/). 

A  decree  against  him  in  such  suit  to  account  is,  however,  suffi- 
cient to  ground  such  an  application  ;  and  therefore,  if  after  such  de- 
cree a  creditor  of  the  testator  proceed  at  law,  the  executor  may 
[456]  move  that  the  creditor  may  be  restrained  from  thus  proceed- 
ing, and  be  directed  to  come  in  under  the  decree,  and  prove  his 
debt  before  the  master  with  the  other  creditors  of  the  testator  :  but 
an  affidavit  by  the  executor,  that  he  had  paid  all  the  assets  into  court, 
is  indispensably  necessary  to  support  the  motion,  and  such  creditor 
shall  be  allowed  the  costs  of  his  proceedings  at  law  before  actual 
notice  of  the  decree  (&).  If  he  proceed  at  law  after  such  notice,  he 
shall  be  subject  to  the  costs  of  the  subsequent  proceedings  (/).  If 
the  creditor  proceeding  at  law  has  recovered  a  judgment  cle  bonis 
testatoris,  the  court  will  restrain  him  from  taking  out  execution  ; 
but  if  he  has  obtained  a  verdict,  which  will  entitle  him  to  a  judgment 
de  bonis  propriis  against  the  executor,  the  court  will  not  restrain 
him  from  proceeding  at  law  (m). 

However  in  a  later  case,  where  after  a  decree  for  the  administra- 
tion of  assets,  an  executor  pleaded  a  false  plea  to  an  action  brought 

(/)  Mitfi  6.1,  64.  (/)  Potts  v.  Layton,  Extx.  Mich.    T. 

(g)  Thompson  v.   Stanhope,   Ambl.  1802,  at  Westminster,  before  Sir  Wil- 

737.  liam    Grant,    M.    R.    sitting    for  Lord 

•   (//)  Com.  Dig1.  Chancery,  3  G.  6.     2  Eldon,  C.  and  afterwatds  in  the  same 

Fonbl.    2d  edit.  408,  note  (t).    Bucele  term  before  Lord  Eldon,  C.     See  also 

v.  Atleo,  2  Vern.  67.  Kenyon  v.  Worthington,    Dick.    Rep. 

(i)  2  Fonbl.  ibid.   Rush  v.  Higgs,  4  668. 

Ves.  jun.  638.  (■>»)  Terrewest  v.  Featherby,  2  Meri. 

(/.:)  Gilpin,  v.  Lady  Southampton,  18  Rep.    480.    and   Brook  v.  Skinner,  in 

Yes.    469.    and  see  Jackson   v.    Leaf,  note. 
1  Jac.  St  Walk.  229. 


property  and  his  whole  interest  in  the  joint  property,  is  to  be  divided  among-  all 
his  creditors  (joint  and  separate)  of  equal  degree,  equally,  pro  rata.  Bell,  Ex. 
v.  Newman,  Jidm.  5  Serg.  &  Rawle,  78.  In  such  a  case  in  South  Carolina*  co- 
partnership funds  are  first  applicable  to  co-partnership  debts,  and  private  fundi 
to  private  debts.  Woddrop  v.  Ward,  Ex.  3  Desaus,  Rep.  203.  Hall  v.  Hall, 
2  M 'Cord's  Cha.  Hep.  302. 


CHAP.  X.]  EXECUTORS  IN  EQUITY.  456 

against  him  by  a  creditor  of  the  testator,  in  order  that  he  might 
have  an  opportunity  to  apply  for  an  injunction  to  restrain  the  ac- 
tion, Sir  J.  Leach,  V.  C.  granted  the  injunction,  and  said,  he  con- 
sidered the  law  to  be  settled  according  to  the  doctrine  laid  down  by 
Lord  Mansfield  in  Harrison  v.  Beccles,  cited  in  Irving  v.  Peters, 
3  T.  R.  688,  that  an  executor  who  pleaded  plene  administravit, 
was  liable  only  to  the  extent  of  assets  of  the  testator  come  to  his 
hands  (ra).  (1) 

It  is  a  general  principle,  that  an  executor  shall  have  no  allowance 
in  equity  for  his  trouble  in  the  execution  of  the  trust  reposed  on 
him,  unless  directed  by  the  will  (n)  ;  (2)  and  least  of  all  where  a 
legacy  is  expressly  left  him  as  a  recompence.  Nor  is  the  case  alter- 
ed by  his  renunciation  of  the  executorship,  and  his  afterwards  as- 
sisting in  it ;  nor  although  it  appear  that  he  has  deserved  more, 
and  has  benefitted  the  estate  to  the  prejudice  of  his  own  affairs  (o). 
And  even  where  an  executor  in  trust,  who  had  no  legacy,  in  a  case  in 
which  the  execution  of  the  office  was  likely  to  be  attended  with  trou- 

(jn)  Fielden,  v.  Fielden    1   Sim.   8c  1  Ves.  115."    Scattergood  v.  Harrison, 

Stu.  255.  and  see  Dyer  v.  Kearsley,   2  Mosel.    128.  vid.  Harwell    v.    Parker, 

Meriv.    482,    in    note,     and    Lord    v.  2  Vez.  365.    . 

Wormleighton,  1  Jacob.  148.  (o)  Robinson    v.    Pett,    3  P.  Wms. 

(«)  11  Vin.  Abr.  433.     Robinson  v.  249. 
Pett,  3  P.  Wms.  251.    Ellison  v.  Airey, 


(1)  Siglar  et  al.  Adm.  v.  Haywood,  8  Wheat.  Rep.  675. 

(2)  In  Pennsylvania,  so  far  back  as  the  testamentary  law  can  be  traced,  exe- 
cutors have  had  a  compensation  for  services  (3  Binn.  560.).  The  Act  of  March 
27th,  1713,  (Purd.  Dig.  610.  1  Dall.  Laws,  98.  1  Sm.  Laws,  81.)  establishing 
Orphans'  Court,  provides  that  the  Orphans'  Court  may  "  order  the  payment  of 
such  reasonable  fees  for  copies  [of  bonds,  inventories,  accounts,  actings  and  pro- 
ceedings whatsoever  of  guardians,  trustees,  tutors,  executors  and  administrators] 
and  for  all  other  charges,  trouble,  and  attendance,  which  any  officer,  or  other 
person,  shall  necessarily  be  put  to  in  the  execution  of  this  act,  as  they  shall  think 
equitable  and  just."  This  act  has  always  been  construed  as  allowing  commissions 
to  executors  and  administrators  (Prevost  v.  Gratz,  3  Wash.  C.  C.  Rep.  434.), 
whose  right  to  commissions  is  so  well  established,  that  they  must  release  them  in 
order  to  become  witnesses.  Anderson  v.  Neff,  11  Serg-  &.  Rawle,  208.  Gebhard 
v.  Shindle,  15  Serg.  8c  Rawle,  235.  Patton  v.  Ash,  7  Serg.  &  Rawle,  116.  The 
amount  of  commissions  is  a  matter  in  the  discretion  of  the  Court,  (Pusey  v.  Clem- 
son,  9  Serg.  &  Rawle,  204.)  and  the  number  of  the  executors  does  not  make  any. 
difference  in  the  rate  :  if  their  trouble  be  unequal,  a  share  of  the  commissions 
ought  to  be  assigned  to  each  proportioned  to  his  trouble.  Case  of  Walker's  Es- 
iate,  9  Serg.  8t  Rawk>223. 

In  Maryland,  by  statute,  the  commission  to  be  allowed  to  an  executor  or  ad- 
ministrator is  submitted  to  the  discretion  of  the  Orphans'  Court,  and  is  not  to  be 
under  five  per  cent,  nor  exceeding-  ten  per  cent,  on  the  amount  of  the  inventory. 
Nichols  v.  Hodges^  1  Peters'  S.  C.  Rep.  562. 

In  New-York,  previous  to  the  Act  of  15th  April,  1817,  an  executor  was  not 
entitled  to  any  compensation  for  his  services  :  that  act  authorizes  the  Court  of 
Chancery  to  make  an  allowance  to  executors  and  administrators  for  their  services 
according  to  a  fixed  rate,  and  to  fix  that  rate;  but  does  not  authorize  the  Court  to 
make  a  special  allowance  without  regard  to  a  fixed  rate.  M'Whurter  v.  Benson, 
i  Hopk.  Cha.  Rep.  28.     7  Johns.  Cha.  Rep.  page  266  of  the  Index. 

39 


456  OF  REMEDIES  FOR  EXECUTORS.  [BOOK   III. 

ble,  at  first  declined,  but  afterwards  agreed  with  the  residuary  lega- 
tee, in  consideration  of  a  hundred  guineas,  to  act  in  the  executorship; 
and  on  his  dying  before  the  execution  of  the  trust  was  completed, 
[457]  his  executors  filed  a  bill  to  be  allowed  that  sum  out  of  the 
trust  money  in  their  hands,  the  court  refused  the  claim,  observing, 
that  independently  of  the  executors  having  died  before  the  trust 
was  executed,  such  bargains  ought  to  be  discouraged  as  tending  to 
dissipate  the  property  (p).  But  an  executor  in  India  of  a  party 
domiciled  in  that  country,  not  having  a  legacy,  was  held,  on  passing 
his  accounts  in  the  court  of  chancery  here,  to  be  entitled  to  a  com- 
mission at  the  rate  of  5  per  cent,  on  receipts  and  payments,  accord- 
ing to  the  practice  in  India  (q).  So  where,  after  goods  were  con- 
signed to  a  factor,  the  principal  died,  having  appointed  him  execu- 
tor, and  then  the  goods  came  to  his  hands,  it  was  decreed,  that  he 
should  be  allowed  factorage  and  commission  for  them  (r).  If,  how- 
ever, an  executor  in  India  has  a  legacy  for  his  trouble,  he  will  not 
be  entitled  to  commission,  either  on  his  receipts  or  payments  as  ex- 
ecutor ;  nor  will  he  be  allowed  in  passing  his  accounts,  after  a  se- 
ries of  years,  to  renounce  his  legacy,  and  charge  commission  on 
such  receipts  and  payments  [s). 

If  two  executors  are  plaintiffs  in  equity,  and  one  of  them  is  ex- 
communicated, the  other  may  be  severed,  and  the  defendant  shall 
answer  him  (t).  One  executor  may  sue  his  co-executor  in  equity  (u). 
In  case  of  a  suit  by  co-executors,  the  proceedings  do  not  abate  by 
the  death  of  one  of  them  (V). 

If  a  temporary  executor  prove  the  will,  and  afterwards  his  exe- 
[45S]  cutorship  determine,  the  subsequent  executor  may  maintain 
a  suit  without  another  probate  (w). 

An  administrator  shall  be  relieved  in  chancery  against  a  fraud  to 
his  administration  :  as  if  the  grant  be  wrongfully  obtained,  and  af- 
terwards repealed  on  citation,  an  assignment  of  a  term  by  the  gran- 
tee in  trust  for  himself  shall  be  revoked,  and  avoided  by  the  subse- 
quent administrator  (x). 

If  a  bill  be  brought  by  an  administrator  durante  minoritate, 
and  pending  the  suit  the  executor  come  of  age,  he  may  continue  the 
suit  by  a  supplemental  bill  (y). 

In  case  an  administration  be  determined  by  death,  a  bill  of  revi- 
vor by  a  subsequent  administrator  has  been  admitted  (z). 

(p)  Gould  v.  Fleetwood,  Mich.  1732.  (u)    Ibid.     Vifl.    11  Vin.  Abr.    363. 

at  the  Rolls,  cited    3  P.    Wms.    251,  365.     3  Bac.  Abr.  32. 

note  (a),  (v)  Hinde's  Prac.  in  Chan.  47. 

(y)  Chetham  v.  Lord  Audley,  4  Ves.  (w)  Pract.  Reg.  2d  edit.  209.    1  Ch. 

jun.  72.  Ca. -265. 

(r)  Scattergood  v.  Harrison,  Mosel.  '  ■  (x)  2  Ch.  Ca.  129.   Com.  Dig.  Chan. 

128.  2B.  1. 

0)  Freeman  v.  Fairlie,  3  Men.  Rep.  (y)  Mitf.  61. 

124.  (z)  Mitf.  61,  in  note.  Owen  v.  Cur- 

(/)  Prac.  Reg.  in  'Chancery,  2d  edit,  zan,    2  Vern.  237.      2  Eq.    Ca.    Abr. 

209.  3,  4. 


CHAP.  X.]     OF  REMEDIES.  AGAINST  EXECUTORS.  458 

Sect.  III. 
Of  remedies  at  law  against  executors  and  administrators* 

I  am  now  in  the  last  place,  to  treat  of  the  remedies  against  exe- 
[459]  cutors  and  administrators,  or  the  means  which  the  law  pre- 
scribes to  enforce  the  performance  of  their  various  duties. 

As  representatives  of  the  deceased  they  are  answerable,  whether 
expressly  named  or  not,  as  far  as  they  have  assets,  for  all  his  debts, 
covenants,  and  other  contracts  (a).  An  executor  is  thus  liable  for 
all  debts  due  from  the  testator  by  judgment,  statute,  recognizance, 
obligation,  or  other  debts  by  record  or  specialty  [b). 

So  an  action  of  debt  lies  against  the  executor  of  a  sheriff,  on  a 
judgment  recovered  against  the  testator,  for  an  escape  (c). 

So  an  action  may  be  maintained  against  an  executor  on  other  in- 
ferior dehjs  of  record,  as  issues  forfeited,  fines  imposed  at  the  assizes, 
quarter  ^sessions,  by  commissioners  of  sewers,  or  bankrupts,  by 
stewards  in  leets,  or  the  like  {d). 

He  is  also  subject  to  an  action  on  the  testator's  obligation  :  or  on 
his  covenant,  as  to  pay  rent  (e),  or  to  repair  premises  (/).  An  ex- 
ecutor may,  likewise,  be  sued  by  the  lord  of  the  manor  for  a  relief 
due  from  the  testator  (g).  So  an  action  lies  against  an  executor  on 
[460]  simple  contract  of  the  testator,  either  in  writing  or  by  parol, 
either  express  or  implied  ;  as  on  bills  of  exchange  and  promissory 
notes,  debt  for  rent  on  a  parol  lease  (h)y  or  assumpsit  for  money 
had  and  received  by  the  testator  to  the  plaintiff's  use  (i).  So  an  ac- 
tion may  be  maintained  by  a  gaoler  against  an  executor  for  provi- 
sions found  for  the  testator  in  prison  (k)  :  or  against  the  executor  of 
a  sheriff,  who  levied  money  on  a.  fieri  facias,  and  died  before  he 
paid  it  (/)  :  or,  as  it  seems,  against  an  executor  on  a  collateral  pro- 
mise by  the  testator  (m),  as  where  he  promised  to  give  A.  a  sum. 
of  money  in  consideration  that  he  would  marry  B. 

(rt)  3  Bac.  Abr.  95.     Off.   Ex.  117,  S.  C.     Salk.  309.     S.  C     Ld\  Raym. 

118.  Cro.  Car.  187.  Morgan  v.  Greene,  553. 

Jon.   223.     Hovvse   v.    Webster,  Yelv.  '    (g)  Com.  Dig.  Admon.  B.  14.  Noy. 

103.    Dyer,  23.  43, '44. 

(b)  Com.  Dig.  Admon.  B.  14.     Off.  (A)  Com.  Dig.  Admon.  B.  14. 

Ex.  us.  (i)  9  Co.  89  b.     10  Co.  77  b.  Cro. 

(V)  Dver,  322.  Car.  294.  Plowd.  182. 

((/)  Com.  Dig.  Admon.  B.  14.     Off.  (k)  9  Co.  87  b. 

Ex.  118.  (/)  Com.  Dig.  Admon.  B.  14.  1  Roll. 

(e)  Biinnghurst  v.   Speerman,  Salk.  Abr.  921.     Jon.  430.     Mar.  13. 

297.     Sti.  387.  406.     Com.   Dig.  Cove-  (m)    Com.  Dig.    Admon.  B.    14.     1 

nant,  C.  1.  Roll.  Rep.  14.     Cro.  Jac.  404.     3  Bui. 

(/)   Tilney  v.  Norris,   Caith.    519,  2.  6.     Sti.  158.     0\v:    56,  57.      Palm. 

329.     Jon.  16. 


460  OF  REMEDIES  AGAINST  [BOOK  III. 

In  short,  in  all  cases  where  the  cause  of  action  is  money  due,  or 
a  contract  to  be  performed,  gain  or  acquisition  of  the  testator  by  the 
work  and  labour  or  property  of  another,  or  a  promise  of  the  testator, 
express  or  implied  ;  the  action  survives  against  the  executor.  But 
where  the  cause  of  action  is  a  tort,  or  arises  ex  delicto  supposed  to 
be  by  force  and  against  the  king's  peace,  there  the  action  dies,  as 
battery,  (1)  false  imprisonment,  trespass,  (2)  slander,  nuisance,  (3) 
diverting  a  watercourse,  escape,  or  on  a  penal  statute,  and  many 
other  cases  of  the  like  kind  (n). 

[461]  Such  are  the  species  of  actions  which  survive  against  an 
executor,  or  die  with  the  person  on  account  of  the  cause  of  action. 
But  there  are  other  species  of  actions,  which  survive  or  die  in 
respect  of  the  form. 

In  some  actions  the  defendant  could  have  waged  his  law,  as  m 
debt  on  a  simple  contract,  and  therefore  no  action  in  that  form  lies 
against  an  executor  ;  but  now  other  actions  are  substituted  in  their, 
room,  on  the  very  same  cause,  which  survive  and  may  be  maintain- 
ed against  him. 

No  action,  where  in  form  the  declaration  must  be,  quare  vi  et 
armis,  et  contra  pacem,  or  where  the  plea  must  be,  that  \^et  testa- 
tor was  not  guilty,  will  lie  against  an  executor.  (4) 

On  the  face  of  the  record  the  cause  of  action  arises  ex  delicto, 
and  all  private  criminal  injuries,  or  wrongs,  as  well  as  all  public 
crimes,  are  buried  with  the  offender. 

But  in  most,  if  not  in  all  the  cases,  another  action  may  be  brought, 
which  will  answer  the  purpose.  An  action  on  the  custom  of  the 
realm,  against  a  common  carrier,  is  for  a  tort  and  supposed  crime; 
the  plea  is  not  guilty,  and  therefore  an  action  will  not  lie  against 
an  executor  ;  but  assumpsit,  which  is  another  action  for  the  same 
cause,  is  maintainable.  So  if  a  man  take  a  horse  from  another,  and 
bring  him  back  again,  an  action  of  trespass  will  not  lie  against  the 
[462]  executor,  though  it  would  have  lain  against  the  party  him- 
self. (5)  But  an  action  for  the  use  and  hire  of  the  horse  will  lie 
against  the  executor  (o).  Nor  is  the  executor  chargeable  for  the 
injury  done  by  his  testator  in  cutting  down  another  man's  trees  ; 
but  for  the  benefit  arising  to  the  testator  from  the  value  or  sale  of 
the  trees,  he  may  be  called  upon  to  answer  (p).     Nor  will  trover 

(n)  Com.   Dig.  Admon.  B.  1-5.     Off'.         (o)  Hambly  v.  Trott,  Covp.  375. 
Ex.    127,   128.    3  Bl.  Com.  302.    Ham-         (/>)  lb.  Cowp.  376. 
bly  v.  Trott,  Cowp.  375. 


(1)  Miller  v.   Umbehower,  10  Serg.  8i  Rawle,  31. 

(2)  Nicholson  v.  Elton,  Mm.  13  Serg-.  &  Ra\vle,  415. 

(3)  Hawkins  v.  Class,  1  Bibb's  Rep.  246. 

(4)  Nicholson  v.  Elton,  Mm.  13  Serg.  &  Rawle,  416. 

(5)  Trespass  for  mesne  profits  of  land  recovered  in  ejectment  lies  against   an 
executor  in  Virginia,  Lee  v.  Cooke's  Ex.  Culm.  Rep.  331. 


CHAP.  X.]  EXECUTORS  AT  LAW.  462 

lie  against  an  executor  for  a  conversion  by  his  testator  ;  (1)  for  in 
that  case  the  form  of  the  plea  is,  that  the  testator  was  not  guilty, 
and  the  issue  is  to  try  the  guilt  of  the  testator  :  But  if  the  testator 
sold  the  property  in  his  lifetime,  his  executor  shall  be  charged  in 
an  action  for  money  had  and  received  by  the  testator  to  the  plain- 
tiff's use. 

The  fundamental  distinction,  then,  is  this  :  If  it  is  a  sort  of  in- 
jury by  which  the  offender  acquires  no  gain  to  himself  at  the  ex- 
pence  of  the  sufferer  :  as  for  example,  beating  or  imprisoning  a  man, 
there  the  person  injured  has  only  a  reparation  for  the  delictum  in 
damages  to  be  assessed  by  a  jury,  and  therefore  the  executor  is  not 
liable  :  But  where,  besides  the  crime,  property  is  acquired  which 
benefits  the  testator,  an  action  for  the  value  of  the  property  shall  sur- 
vive against  the  representative  (g).  (2) 

The  executor  is  also  liable  on  contracts  of  the  testator,  although 
[463]  the  cause  of  action  accrue  not  till  after  his  death  :  as  on  a 
bond  which  becomes  due,  or  a  note  payable  subsequently  to  that 
event  (r). 

The  liability  of  an  executor  to  the  payment  of  rent  incurred  after 
the  testator's  death,  has  been  already  considered  (*), 

In  the  cases  which  I  have  been  enumerating,  the  executor  shall 
be  liable  only  to  the  amount  of  the  assets  (t).  (3)  The  judgment 
against  him  is  for  the  debt  or  damages,  to  be  levied  on  the  goods 
and  chattels  of  the  testator  in  the  hands  of  the  defendant,  if  he  have 
so  much  thereof  in  his  hands  to  be  administered  (w).  But  there 
are  cases  in  which  he  shall  be  personally  responsible,  debonispro- 
priis  ;  as  if  he  commit  any  of  those  acts  which  constitute  a  devas- 
tavit, on  its  being  duly  substantiated,  he  must  answer  out  of  his 
own  estate  for  the  value  of  what  he  has  wasted  (x).  (4)  An  executor 
may  also  make  himself  chargeable  in  his  private  capacity  to  the 
plaintiff's  demands,  by  pleading  a  plea  the  falsehood  of  which  lies 
in  his  own  knowledge,  and  which,  if  true,  would  be  a  perpetual  bar 

(q)  Ibid.  Cowp.  376,  377.  («)  Vid.  Tidd's  Prac.  B.  R.  941.  and 

(»•)  Com.  Dig.  Pleader,  2  D.,2.  infr, 

(s)  Vid.  supr.  278.  et  seq.    .  (x)  Com.  Dig.  Admon.  I.  3.     3  Bac. 

(t)  9  Co.  88  b.  Abr.  77.     Off.  Ex.  157.  164. 


(1)  Hench  v.  Metzer,  Ex.   6  Serg.  &  Rawle,  272. 

(2)  Lattimore  v.  Simmons,  13  Serg.  &  Rawle,   185. 

(3)  In  assumpsit  against  executors,  founded  upon  their  assumption  as  execu- 
tors, on  a  consideration  existing  in  the  lifetime  of  the  testator,  the  declaration 
need  not  aver  assets.     Malin  v.  Bull,  13  Serg.  &  Rawle,  441. 

(4)  Wilson  v.  Long,  12  Serg.  &  Rawle,  58.  But  no  contract  arises  upon  a. 
devastavit,  which  will  suppose  an  action  against  the  executor  personally,  nor  is 
a  devastavit  a  trespass  within  the  meaning  of  the  Act  of  22d  March,  1814,  (Purd. 
Dig.  460.)  giving  jurisdiction  to  justices  of  the  peace,  in  cases  of  trespass  for 
injuries  committed  on  real  or  personal  estate,  ibid. 


463  OF  REMEDIES  AGAINST  [BOOK  III. 

to  the  action  (y)  ;  (1)  therefore  if  an  executor  plead  ne  unques  ex- 
ecutor, that  he  never  was  executor  (z),  or  plead  a  release  made  to 
himself  (a),  and  it  is  found  against  him  ;  the  judgment  shall  be  in 
[464]  the  alternative,  de  bonis  testatoris,  et  si  non,  de  bonis  pro- 
priis.  An  executor  may  also  make  himself  personally  liable  by 
his  promise  to  pay  a  debt  of  the  testator,  or  answer  damages  out  of 
his  own  estate  ;  (2)  but  pursuant  to  the  statute  of  frauds,  such  pro- 
mise, or  some  note  or  memorandum  thereof  must  be  in  writing, 
and  signed  by  him,  or  some  other  person  by  his  authority  (b).  (3) 
There  must  also  be  a  sufficient  consideration  to  support  the  promise : 
It  must  be  alleged  and  proved,  that  assets  were  come  to  his  hands; 
or  that  in  consideration  the  creditor  would  forbear  to  sue  him,  he 
promised  to  pay  the  debt  (c)  :  Or  an  admission  of  assets  must  be  im- 
plied from  the  nature  of  the  promise  itself;  as  where  the  defendant 
owned  the  money  lay  ready  for  the  plaintiff  whenever  he  would 
call  for  it  (d)  :  and  where  executors  gave  a  note  to  a  creditor  where- 
by they  promised  "as  executors"  to  pay,  &c.  with  interest  (e).  (4) 
In  all  these  cases  the  executor  shall  be  liable  to  the  same  species  of 
judgment.  Forbearance  to  sue,  although  the  remedy  be  only  in. 
equity,  is  a  sufficient  consideration  (f). 

(y)  Off.  Ex.  85.     3  Bac.  Abr.  87.     1  91.     Reech  v.    Kennegal,  1  Ves.  125. 

Roll.  Abr.  93.     Godolph.  98.     11  Vin.  Hawkes    v.     Saunders,      Covvp.    293. 

Abr.  388.     Howard  v.  Jemmet,   1  Bl.  Rann  v.  Hughes,  7  Bro.  P.  C.  551. 
Rep.  400.  (d)  Camden  v.  Turner,  cited  Cowp. 

(z)  1  Roll.  Abr.  930.  933.  293. 

(a)  Cro.  Jac.  671,  672.  (e)    Childs   v.    Monins,    2  Brod.  & 

(6)  Vid.  stat.  29.  Car.  2.  c    3.  s.  4.  Bing.  460. 
Hawkes  v.   Saunders,  Cowp.  289.  and         (/)  3  Bac.  Abr.  90.    1  Sid.  89.    Scott 

Rann  v.  Hughes,  7  Bro.  P.  C.  551.  v.    Stephenson,    1  Lev.    71.      1    Roll. 

(c)  Trevinian  v.  Howell,  Cro.  Eliz.  Rep.  27. 


(1)  Siglar  v.  Haywood,  8  Wheat.  675.  The  plea  of  plene  administravit,  though 
not  sustained,  is  not  necessarily  a  false  plea  within  his  own  knowledge  ;  and,  if 
it  be  found  against  him,  the  verdict  ought  to  find  the  amount  of  assets  unadmin- 
istered,  and  the  defendant  is  liable  for  that  sum  only.  ibid.  Nor  are  the  pleas 
of  non  assumpsit,  and  non  assumpsit  infra,  &c  pleaded  by  administrators,  though 
found  against  them,  such  false  pleas  as  will  subject  them  personally  to  costs. 
Evans,  Adm.  v.  Pierson,  1  Wend.  Rep.  30.  See,  as  to  what  pleas  are  false  pleas, 
Ousterhout  v.  Hardenburgh,  19  Johns.  Rep.  267. 

(2)  See  Forbes  v.  Perrie,  Adm.  1  Harr.  &  Johns.  109.  A  declaration  setting 
forth  an  implied  promise  by  an  administratrix,  as  such,  to  pay  money  paid,  laid 
out,  and  expended  by  the  plaintiff  for  her  use  as  administratrix,  in  consequence 
of  the  payment,  after  the  death  of  the  intestate,  of  a  debt  for  which  he  and  the 
plaintiff  were  jointly  liable  in  his  lifetime,  is  good;  and  a  judgment  de  bonis  intes- 
tati  founded  upon  it  may  be  supported.  Collins,  Adm.  v.  Weiser,  12  Serg.  &. 
Rawle,  97.  Giles  v.  Bacon's  Adm.  1  Harr.  &  Gill.  164.  U  hitalccr  v.  Jflii/uker, 
6  Johns.  Rep.  112. 

(3)  The  Act  of  Assembly  of  March  21st,  1772,  "for  prevention  of  frauds 
and  perjuries,"  (Purd.  Dig.  516,  1  Dall.  Laws,  640,  1  Sm.  Laws,  389.)  contains 
no  provision  requiring  that  the  promise  should  be  in  writing. 

(4)  Shields  et  al.  Ex.  v.  Owens,  1  Rawle,  72.  Curtis  v.  77ie  Bank  of  Som- 
erset, 7  Harr.  &  Johns.  25.     Geycr  v.  Smith,  1  Dall.  Rep.  347.  n. 


CHAP.  X.]  EXECUTORS  AT  LAW.  464 

But,  in  case  there  be  no  assets,  a  promise  by  an  executor  to  pay 
a  debt  of  the  testator  is  nudum  pactum  (g).  (1)  And  on  a  plea  of 
plene  administravit,  proof  of  an  admission  by  the  executor  that 
the  debt  was  just,  and  should  be  paid  as  soon  as  he  could,  is  not 
evidence  to  charge  him  with  assets  (h). 

Nor  shall  an  executor's  paying  interest  on  a  bond  due  from  the 
testator  be  considered  as  an  admission  of  assets  for  the  princi- 
[465]  pal  (i).  Nor  shall  an  executor's  merely  submitting  to  a'n 
award  amount  to  an  admission  of  assets  (k).  (2)  But  if  the  executor 
bind  himself  by  a  personal  engagement  to  perform  the  award  ;  or 
if  his  submission  to  arbitration  be  a  reference,  not  only  to  the  cause 
of  action,  but  also  of  the  question,  whether  he  has  or  has  not  assets, 
and  the  arbitrator  award  the  executor  to  pay  the  amount  of  the  plain- 
tiff's demand,  it  is  equivalent  to  determine,  as  between  the  parties, 
that  the  executor  had  assets  to  pay  the  debt.  The  defendant  there- 
fore is  concluded  by  the  award,  although  it  will  not  operate  as  an 
admission  of  assets  in  any  other  litigation,  and  he  may  be  attached 
for  non-payment  (/).  (3) 

According  to  a  modern  decision,  an  action  may  be  maintained  in 
a  court  of  common  law  against  an  executor,  in  that  character,  on  his 
express  promise  to  pay  a  legacy  in  consideration  of  assets  (m).  (4) 
And  in  another  case  it  was  also  ruled  that  on  the  same  promise, 
grounded  on  the  same  consideration,  action  will  lie  against  an  exe- 
cutor personally  in  his  own  right  (n). 

(g)    Pearson    v.     Henry,     5    Term  Pearson    v.    Henry,    5    Term  Rep.  7. 

Rep.  8.  Worthington  v.  Barlow,  7  Term  Rep. 

(A)  Hindsley  v.  Russel,  12  East,  232.  453. 

(i)  Pearson  v.  Henry,  5  Term  Rep.  8.  (m)  Atkins  v.  Hill,  Cowp.  284. 

(k)  Ibid.  5  Term  Rep.  6.  (»)  Hawkes  v.  Saunders,  Cowp.  289. 
(/)  Barry  v.  Rush,  1  Term  Rep.  691. 


(1)  Landis  v.   Urie,   10  Serg.  &  Rawle,  316.     t 

(2)  Hoare  v.  Muloy,  2  Yeates,  161.  Swi'card  v.  Wilson,  2  Rep.  Const.  Ct. 
So.  Carolina,  208.  There  was  no  decision  called  for  in  the  nisi  prius  case  of 
M'Kee  v.  Thompson,  Addis.  Rep.  24,  where  a  contrary  doctrine  was  advanced 
by  the  Court,  to  whom,  as  it  is  stated  in  the  note,  the  case  of  Pearson  v.  Henry 
was  not  known  when  the  cause  was  argued  on  the  motion  in  arrest  of  judgment. 

(3)  A  confession  of  judgment  generally  by  an  executor  or  administrator  in  an 
action  brought  against  him,  is  an  admission  of  assets  to  the  amount  of  the  debt, 
{Griffith  v.  Chew,  8  Serg.  &  Rawle,  17.  Den  v.  JDe  Hart,  1  Halst.  Rep.  450.)  but 
confession  of  judgment  de  bonis,  by  agreement,  in  an  amicable  action,  is  not  con- 
clusive proof  in  Pennsylvania  of  the  existence  of  assets  in  a  suit  suggesting  a 
devastavit,  but  the  existence  of  assets  must  be  proved  by  evidence  aliunde.  And 
where  an  administrator  confesses  a  judgment  which  is  afterwards  reversed,  he 
is  not  precluded,  in  a  subsequent  suit,  from  showing  the  want  of  assets.  Greene 
v.  Stone,  1  Harr.  8c  Johns.  405. 

(4)  Clark  v.  Herring,  5  Binn.  33.  See  M'Niell  v.  Quince,  2  Hayw.  Rep.  153. 
But  no  contract,  independent  of  express  promise  in  consideration  of  assets,  arises 
between  the  executor  and  legatee  to  pay  a  legacy,  nor  does  any  action  at  com- 
mon law  lie  to  recover  it ;  the  remedy  of  the  legatee  is  given  him  by  the  Act 
of  Assembly  of  21st  March,  1772.  (Purd.  Dig.  517.)  Wikon  v.  Long,  12 
Serg.  &  Rawle,  58. 


460  OF  REMEDIES  AGAINST  [BOOK  III. 

But  this  doctrine  has  been  exploded  by  subsequent  adjudications. 
It  is  true,  that  in  the  case  on  which  one  of  them  was  founded,  the 
[466]  executor  had  not,  as  in  two  former  instances,  expressly  promised 
to  pay  the  legacy  ;  yet  two  of  the  three  learned  judges,  who  decid- 
ed it,  reasoned  on  general  principles,  and  denied  the  jurisdiction 
of  the  courts  of  common  law  over  the  subject  of  legacy,  without  re- 
ference to  any  distinction  between  an  express  and  an  implied  pro- 
mise. They  held,  that  policy  and  convenience  forbade  the  courts  of 
common  law  to  entertain  this  species  of  action,  since  they  can 
impose  no  terms  on  the  party  suing  :  Whereas  courts  of  equity  in 
such  suits  interfere  in  a  manner  highly  beneficial  to  private  families  ; 
as  on  a  bequest  of  a  legacy  to  the  wife,  they  require  the  husband  to 
make  an  adequate  settlement  on  her,  as  the  condition  of  his  recov- 
ering it  (/i)  :  But  if  he  might  resort  to  an  action,  the  wife  and  chil- 
dren would,  in  a  variety  of  instances,  be  left  destitute  of  all  provi- 
sion. They  also  observed,  that  the  only  other  precedent  of  such 
an  action  occurred  in  the  time  of  the  usurpation  ;  and  the  reason 
there  assigned  for  allowing  it,  was  to  prevent  a  failure  of  justice,  as 
the  ecclesiastical  courts  were  at  that  time  abolished,  and  the  court 
of  chancery  did  not  then  take  cognizance  of  legatory  matters,  and 
these  principles  have  been  adhered  to  in  decisions  still  more  re- 
cent (o).  (1) 

Although  an  executor  be  entitled,  as  we  have  seen  (p),  to  sue  in 
[467]  a  court  of  conscience,  he  is  not  liable  to  be  sued  there.  The 
legislature  could  not  intend  to  give  to  such  a  court  an  authority  to 
inquire  into  the  conduct  of  executors,  and  to  take  an  account  of 
assets  (q). 

Executors  and  administrators  shall  not  in  general  beheld  to  bail, 
for  they  are  not  personally  liable,  but  only  in  respect  of  the  assets. 
It  were  unreasonable  to  subject  them  to  an  arrest  in  their  represent- 
ative cafacity  (?').  (2)  But  they  may  be  held  to  bail,  if  it  appear 
that  they  have  wasted  the  property  (s).  (3)  Yet  a  bare  suggestion 
of  a  devastavit  is  not  sufficient  for  that  purpose  without  the  oath  of 

(»?)    Vid.    Browne    v.    Elton,    3   P.  (q)  Stat.  14  G.  2.  c.  10.  Doug.  263. 

Wms.  202.  and  supr.  320,  321.  Tidd's  Prac.  B.  R.  873. 

(o)  Decks  v.    Strutt,   5  Term  Rep.  (r)  3  Bac.  Abr.  101.     Cro.  Jac.  350. 

690.      Vid.    also    Farish    v.     Wilson,  Hargrave    v.    Rogers,    Yelv.    53.      Sir 

Peake's  Ni.  Pri.  Rep.  73.     See  4  Bac.  Henry  Mildway's  case,  Cro.    Car.   59. 

Abr.  446.  in  note.    Rawl'mson  v.  Shaw,  Litt.  Rep.  2.     1  Crompt.  Prac.  29. 

3    Term    Rep.    557.     and    Mayor   of  (s)    1  Crompt.    Prac.  29.     Anon.   1 

Southampton  v.   Graves,  8  Term  Rep.  Lev.  39.     Dupratt  v.  Testard,  Carth. 

593.  264.     Anon.   1  Mod.  16. 

(/>)  Supr.  436. 


(1)  Pelletreau  v.  Rathbone,  18  Johns.  Rep.  429.     See  also  the  cases  in  notes 
(«)  (b)  to  that  case. 

(2)  An  executor  in   Pennsylvania  may  be  proceeded  against   by   capias,  to 
compel  an  appearance.     Penrose  v.  Penrose,  Ex.  2  Binn.  440,  cited. 

(J)   Hartness  v.   Puree//,   1  Wend.  Rep.  303. 


CHAP.  X,]  EXECUTORS  AT  LAW.  467 

the  plaintiff  (/).  So  where  on  a  judgment  against  an  executor  ex- 
ecution is  sued  out,  and  the  sheriff  returns  a  devastavit,  in  an  action 
to  deht  on  the  judgment  the  executor  may  he  required  to  put  in 
special  bail  (u).  (1)  Where  an  executor  has  personally  promised  to 
pay  a  debt,  it  seems  he  may  be  holden  to  bail  on  such  promise  (w). 
An  executor  defendant  shall  pay  costs  in  case  he  plead  a  plea 
which  is  false  within  his  own  knowledge.  And  the  judgment  for 
the  costs  is  de  bonis  testatoris,  etsinon,  de  bonis  propriis  {as).  (2\ 
[46S]  So  where  a  bankrupt  who'was  sued  as  executor,  pleaded  a 
false  plea,  and  it  being  found  against  him,  the  plaintiff  had  judg- 
ment forthe  costs  de  bonis  propriis,  after  which  the  defendant  ob- 
tained his  certificate,  it  was  held  that  the  judgment  for  the  costs  was 
not  discharged  by  the  certificate  (y).  But  where  an  executor  pleads 
plene  administravit,  and  the  plaintiff  admitting  the  truth  of  the 
plea,  takes  judgment  of  assets  infuturo,  the  defendant  is  not  liable 
to  costs  (z).  (3)  Nor,  as  it  seems,  is  he  so  liable  where  he  pleads 
plene  administravit  prxter,  and  the  plaintiff  admitting  the  truth 
of  the  plea,  takes  judgment  of  the  assets  admitted  in  part,  and  for 
the  residue  of  assets  infuturo  {a).  (4)  So  where  an  executor  pleads 
several  pleas  to  the  whole  declaration,  as  non  assumpsit,  ne  un- 
ques  executor,  and  plene  administravit,  and  one  of  them  is  found 
for  him,  he  is  entitled  to  the  postea  and  costs,%  although  the  other 
plea  be  found  against  him  (b).  (5)  But  if  the  plaintiff  take  judgment 
of  assets  infuturo  on  the  plea  of  plene  administravit,  and  go  to 
trial  on  the  plea  of  non  assumpsit',  he  will  be  entitled  to  costs,  if  he 
obtain  a  verdict ;  and,  therefore,  in  such  ease,  unless  the  defendant 
have  a  good  ground  of  defence  on  non  assumpsit,  it  is  usualfor  him 
to  move  to  withdraw  his  plea,  which  the  court  will  permit  him  to 

(/)    3  Bac    Abr.    101.     1  Crompt.  v.  Spencer,  7  Term  Rep.  359. 

Prac.  101.  iy)  Tidd's  Prac.    B.  R.  81,  82.  896. 

(m)    3  Bac.    Abr.    101.     Dubray   v.  Howard    v.    Jemmet,    8  Burr.    1368. 

Comb.    206.     Boothsby    v.    Butler,    1  S.  C.    1  Bl.  Rep.  400. 

gid.  63.  (=)   Tidd's  Prac.  B.   R.  896.     Imp. 

(w)     Mackenzie    v.    Mackenzie,     1  Prac.  B.  R.  428. 

Term  Rep.  716.  («)  See  Rast.  Ent.  323.     8  Co.  134. 

{x)  3  Bac.  Abr.  100.     Tidd's  Prac.  Noel  v.  Nelson,    2  Saund.  226.   S.  C. 

B.  R.  896.     Plowd.   183.     Hardr.   165.  Sid.  448. 

Cro.  Eliz.  503.  Hutt.  69.  79.     Farr  v.  (b)   Edwards  v.  Bethee,  1  Barn,  and 
Newman,  4  Term  Rep.  641.     Bollard  ,  Aid.  254. 


(1)  A  refusal  to  apply  tbe  assets  to  the  payment  of  debts  does  not  amount  to 
a  devastavit;  nor  does  a* declaration  by  the  executor,  of  intention  to  leave  the 
country  and  not  to  return,  justify  an  order  to  hold  to  bail.  Hartness  v.  Purcell, 
1  Wend.  Rep.  303. 

(2)  Siglar  v.  Haywood,  8  Wheat.  Rep.  675.  As  to  what  pleas  are  false  pleas, 
see  ante,  page  463,  note  (1). 

(3)  Pope,  Adm.  v.  Belavan  rt  al.  1  Wend.  Rep.  68.  Wellborn  v.  Gordon, 
1  Murph.  103. 

(4)  Ford  v.    Crane,  6  Cow.  Rep.  71. 

•  )   Ousterhout  \,   Hurdtnbergh,  19  Johns   Rep    266. 

40 


468  OF  REMEDIES  AGAINST  [BOOK  III. 

ilo  on   payment  of  cosis  (c).      An  executor  defendant  shall  have 
costs  in  case  of  a  judgment  in  his  favour  (d). 

[469]  If  the  defendant  die  after  final  judgment,  and  before  exe- 
cution, the  plaintiff  shall  sue  out  the  same  by  scire  facias  against 
the  personal  representatives  (e).  But  a  fieri  facias,  if  tested  be- 
fore the  defendant's  death,  although  not  delivered  to  the  sheriff  till 
after  it,  may,  without  a  scire  facias,  be  executed  on  his  goods  in  the 
hands  of  his  executor  or  administrator  (/").  (1)  And,  as  we  have 
seen  (g),  a  judgment  signed  atany  time  during  the  term,  or  the  va- 
cation next  following,  relates  back  to  the  first  day  of  the  term,  al- 
though the  defendant  died  before  the  judgment  was  actually  signed; 
and  an  execution  tested  the  first  day  of  the  term  may  be  taken  out 
upon  it  against  the  goods  (A).  (2) 

A  judgment  recovered  against  art  executor  or  administrator  is,  as 
we  have  seen  (i),  usually  for  the  debt  or  damages  and  costs,  to  be 
levied  of  the  goods  and  chattels  of  the  testator  or  intestate  in  the 
hands  of  the  defendant,  if  he  hath  so  much  thereof  in  his  hands  to 
be  administered  ;  and  if  he  hath  not,  then  the  costs  to  be  levied  of 
his-own  proper  goods  (k).  In  such  case  the  course  is  for  the  plain- 
tiff to  sue  out  a  fieri  facias  de  bonis  testatoris,  fyc.  et  si  non,  de 
bonis propriis,  according  to  the  judgment  (I),  upon  which  the  sheriff 
[470]  returns  either  nulla-  bona  generally,  or  nulla  bona,  and  a 
devastavit  by  the  defendant  (m).  On  the  former  return,  the  plain- 
tiff must  proceed  by  scire  fieri  inquiry  (??),  or  by  action  of  debt  on 
the  judgment  suggesting  a  devastavit.  On  the  latter  he  may  have 
execution  immediately  against  the  defendant  by  capias  ad  satisfa- 
ciendum, or  fieri  facias  de  bonis  propriis  (o).  (3)  So,  on  a  devas- 
tavit returned,  a  writ  of  elegit  will  lie  against  an  executor  or  ad- 
ministrator (p). 

(c)  Tidd's  Prac.    B.   R.    896,    897.     Rep.  20. 
Dearne    v.    Grimp,    2  Bl.  Rep.  1275.         (/)  Supr.  463. 

Hindsley  v.  Russel,  12  East,  232.  (k)  Tidd's  Prac.  B.  R.  941.     Farr  v. 

(d)  3  Bac.  Abr.  100.  ,    Newman,  4  Term  Rep.  648.     Bollard 

(e)  Com.    Dig1.      Execution,     (F.)     v.  Spencer,  7  Term  Rep.  359. 
Pleader,    3  L.    7.     Dy.  76  b.     Tidd's         (/)    Gibson    v.    Brook,    Cro.     Eliz. 
Prac.  B.  R.  1056.     Heapy  v.  Parris,  6     886. 

Term   Rep.   268.     Bragner   v.    Lang-  (to)  Thes.  Brew  116,  117. 

mead,  7  Term  Rep.  24.  (n)  Lil.  Ent.  664. 

(/)  Com.  Dig.  Execution,  D.  2.  F.  (o)  Tidd's  Prac.  B.  R.  942.     Thes. 

Semb.  Anon.   2  Ventr.  218.  R.  Skin.  Brev.  46,  47.  122,  125. 

257.  (p)    Tidd's    Prac.     B.     R.    957.      1 

(g)  Supr.  266.  Crompt.  Prac.  346.     2  Leon.  188. 

(h)  Bragner  v.  Langmead,    7  Term 


(1)  Leiper  v.  Levis,  Mm.  15  Serg.  Sc  Rawle,  108. 

(2)  Leiper  v.  Levis,  Mm.  15  Serg.  &.  Rawle,  108  ;  but  a  judgment  creditor 
obtains.no  priority  over  other  judgment  creditors  by  levying  under  an  execution 
so  taken  out. 

(3)  Swearingen's  Ex.  v.  Pendleton's  Ex.  4  Serg.  &  Rawle,  389. 


CHAP.  X.]  EXECUTORS  AT  LAW.  470 

Of  execution  against  an  executor  or  administrator  in  case  of  the 
defendant's  death  before  final  judgment,  I  have  already  treated  (q). 

If  the  plaintiff  confess  the  plea  of  plenc  administravii,  or  plene 
administravit  prxter,  there  shall  be  judgment  in  his  favour  for 
the  debt  or  damages,  and  costs  to  be  levied  as  to  the  whole  or  in 
part,  of  the  goods  of  the  testator  or  intestate  which  shall  afterwards 
come  to  the  hands  of  the  defendant  to  be  administered.  And  such 
judgment  is  styled  a  judgment  of  assets  quando  acciderint ;  but 
in  that  case  execution  cannot  be  had  until  the  defendant  shall  have 
goods  of  the  deceased,  when  the  plaintiff  may  either  sue  out  a  scire 
facias,  or  bring  an  action  of  debt  on  the  judgment  suggesting  a  de- 
vastavit (r).  (l) 

[471]  Before  the  stat.  38  Geo.  3.  c.  87.  an  infant  executor,  after 
he  had  attained  the  age  of  seventeen,  might  have  been  sued  ;  in 
which  case  he  was  to  appear  by-  guardian,  and  not  by  attorney, 
when  the  same  judgment  might  have  been  recovered  against  him 
as  against  any  other  executor  (s)  ;  but  in  consequence  of  that  act, 
till  he  comes  of  age  he  is  neither  capable  of  suing,  nor  liable  to  be 
sued. 

A  limited  executor  is  also  subject  to  be  sued  during  the  continu- 
ance of  his  office  (t). 

In  an  action  against  a  married  woman  executrix  the  husband  must 
be  joined  (a).  On  a  judgment  against  husband  and  wife  executrix, 
if  she  survive,  an  action  of  debt  does  not  lie  suggesting  a  devastavit 
by  the  husband  ;  for,  although,  in  case  she  married  after  the  testa- 
tor's death,  she  is  answerable  for  the  wasting  by  the  husband  (iv), 
yet  she  shall  not  be  charged  de  bonis  propriis  for  the  costs  recov- 
ered against  him  (x). 

If  there  be  several  executors,  they  must  all  be  sued  (y),  in  case 
they  have  all  administered.  But  such  as  have  not  administered 
may  be  omitted  (c)  :  for  although  executors  themselves  must  be  con- 

(q)   Supr.  44.1,  444.  Westcott  v.  Cottle,  1  Roll.  Rep.  380. 

(r)  Tidd's  Prac.  B.  R.   1038,   1039.  (/)   Vid.  Off'.  Ex.  215,  216. 

1041.  8  Co.   134.  and  vid.  Dorchester         (u)  Com.  Dig.  Admon.  D.    Off.  Ex. 

v.  Webb,  Cro.  Car.  372.    Sed  vid.  Noel  203,  207.     3  Bac.  Abr.  9. 
v.  Nelson,  2  Saund.  226.     1  Sid.  448.  (w)  Vid.  supr.  358,  359. 

Noel  v.  Nelson,   1  Lev.  286.     Noel  v.         (x)  Com.  Dig.  Admon.  I.  3.     Horsy 

Nelson,  1  Ventr.  94,  95.     2'Keb.  606.  v.  Daniel,  2  Lev.  161. 
621.631.666.671.     Hob.  199.     Gill  v.         (y)  3  Bac.  Abr.  32s     Off.  Ex.  95. 
Scrivens,  7  Term  Rep.  29.  (z)    3  Bac.  Abr.    33.      Swallow    v. 

(s)  3  Bac.  Abr.  9.  618.    1  Roll.  Abr.  Emberson,   1  Lev.    161.     S.  C.    1  Sid. 

287,  288.     Poph.'  130.     Cro.  Jac.  420.  242. 

(1)  In  Pennsylvania,  if  the  executor  or  administrator  has  no  personal  assets,  he 
may  plead  the  want  of  assets  against  an  action  by  a  creditor;  and,  if  the  jury  find 
in  his  favour,  no  judgment  can  go  against  him;  but  in  such  case  the  plaintiff  may 
pray  judgment  de  tern's,  !kc.  and  of  assets  quando  acciderint,  which  is  entered  of 
course.  Wilson  v.  Hurst's  Ex.  1  Peters'  C.  C.  Pep.  411.  The  Pennsylvahia 
j«ricultural,  &e.  Bmk.v,  Siambaugh's  Mm.  13  Serg.  &  Rawle,  300".  Moore  y. 
Kerr,  Ex.   10  Serg.  &  Rawle,  348. 


471  OF  REMEDIES  AGAINST  [BOOK   III. 

scious  how  many  are  named  by  the  will,  and  must,  as  wc  have  seen, 
[472]  frame  their  action  accordingly,  yet  creditors  and  strangers 
are  bound  to  take  notice  of  such  executors  only  as  in  fact  execute 
the  office.  If  one  only  confess  a  judgment,  it  seems  now  settled 
that  it  shall  not  bind  nor  conclude  the.  rest  (a).  If  they  plead 
distinct  pleas,  it  is  said  that  shall  be  received  which  is  best  for  the 
estate,  or  most  decisive  of  the  question  (b).  Of  co-executors,  if 
some  are  of  full  age,  and  others  infants,  the  action  may  be  against 
them  all ;  but  the  latter  cannot  appear  with  others  by  attorney,  but 
must  appear  by  guardian  (c). 

It  is  clearly  settled,  that  one  executor  shall  not  be  charged  with 
the  devastavit  of  his  companion,  and  shall  be  liable  only  to  the  ex- 
tent of  the  assets  which  came  to  his  hands  (d),  if  he  has  not  in  any 
manner  contributed  to  the  loss.  The  testator's  having  misplaced 
his  confidence  in  one  executor  shall  not  operate  to  the  prejudice  of 
the  others  (e).  Nor  shall  one  executor  be  affected  by  notice  to  the 
other,  who  conceals  it  from  him,  of  the  existence  of  a  superior  de- 
mand (/).  But  if  there  be  notice  to  one  executor,  and  nothing 
more  appears,  he  shall,  it  seems,  be  presumed  to  have  communi- 
cated it  to  the  other  (g). 

[473]  An  executor  of  an  executor  shall,  as  I  have  already  men- 
tioned, pursuant  to  thestat.  4  &  5  W.  fy  M.  c.  24.  s.  12.  be  charged 
on  a  devastavit  committed  by  his  testator,  in  the  same  manner  as 
such  testator  would  have  been,  if  living  (A).  But  although,  as  we 
have  seen  (/),  an  action  of  debt  may  be  maintained  by  A.  an  execu- 
tor, suggesting  a  devastavit  in  the  lifetime  of  his  testator,  on  a  judg- 
ment recovered  by  such  testator  against  B.  also  an  executor  ;  yet 
in  such  case  it  seems,  as  against  B.'s  executor,  a  scire  facias  is  re- 
quisite, inasmuch  as  he  was  not  privy  to  the  judgment  (k). 

It  is  not  enough  for  the  executor  of  an  executor  sued  for  breach  of 
covenant  made  by  the  original  testator,  to  plead plerie  adminislra- 
vit  of  all  the  goods  and  chattels  of  the  original  testator  at  the  time 
of  his  death  come  to  the  hands  of  the  defendant,  &c.  without  also 
pleading  plcne  administvavit  by  the  first  executor  ;  or  at  least  that 
he,  the  second  executor,  had  no  assets  of  the  first ;  so  as  to  shew  that 

(<C\  Off.  Ex.  68.   Vid.  supr.  359,  360.  (c)  Hargthorpe  v.  Milforth,  Cro.  Eliz. 

(0)  Off.  Ex.  98.     3    Bac.  Abr.  33.  318. 

Godolph.  136.     Hudson  v.   Hudson,  1  (/)  Littlehaks  v.  Gascoyne,  Ambl. 

Atk.  460.  and  vid.  supr.  359,  360.  162. 

(c)  3  Bac.  Abr.  13.  619.     Smith  v.  (g)  Ibid. 

Smith,  Yelv.  130.   Styl.  318.    vid.  Fit/,-         (h)  Vid.  Com.  Dip,-.  Admon.  I.  3. 

geraldv.  Villiers,  3  Mod.  236.     Fresco-  BajS.  Abf  99.    Off.. Ex.  259.     Holcomb 

ba!di  v.  Kinaston,  2  Stra.  781.  v.  Pelil,    3  Mod.    113.     Beynon v.  Gol 

(d)  2  Bac.  Abr.31.  Off.  Ex.  161,  162.  1ms,  2  Bro.  Ch.  Hep.  324.  Vid.  supr. 
Godolph.  134.   Hawkins  v-  Dn\ ,   Amid.  130. 

162.     Shep.  Touchs.   !'.»>      Littlehalej         (t)  Supr.  43k,  432s 

v.  Gascoyne,  3  Bro.  Ch.  Rep.  71.  Supr.  (/>-)  Berwick  v.  Andrews  Salk.  314 

430.  S.  C,  Ld.  Raym.  '     I 


CHAP.  X.]  EXECUTORS' AT  LAW.  473 

he  had  no  fund  out  of  which  any  devastavit  hy  the  first  executor 
could  be  made  good  (/). 

An  executor  de  son  tort  is  liable  to  the  action  of  the  lawful  exe- 
cutor or  administrator,  or  to  that  of  a  creditor  ;  and,  in  the  latter  case, 
may  be  charged  as  executor  generally  (?n).  (1)  If  there  be  also  a 
lawful  executor,  they  may  be  joined  in  an  action  by  a  creditor  or 
sued  severally  (?i)  ;  but  it  is  otherwise  if  there  be  a  lawful  adminis- 
trator ;  he  cannot  be  so  joined  with  an  executor  de  son  tort  (o). 
If  a  creditor  take  out  administration,  he  may  recover  his  debt 
against  him  who  before  the  grant  was  executor  de  son  tort,  as  well 
as  the  goods  of  the  intestate  taken  or  converted  previously  to  the 
same  (p).  (2)  And  if  a  person  act  under  a  power  of  attorney  from 
one  of  several  executors,  who  has  proved  the  will,  although  he  can- 
not be  charged  as  executor  de  son  tort  during  the  life  of  such  exe- 
cutor, yet  if  he  continue  to  act  after  the  death  of  such  executor, 
he  may  be  charged  as  executor  de  son  tort,  though  he  act  under 
the  advice  of  another  of  the  executors  who  has  not  proved  the 
will  (q). 

[474]  A  party,  as  we  have  seen  (r),  may  be  an  executor  de  son 
tort  of  a  term,  and  is  chargeable  for  waste  committed  by  him  on 
the  demised  premises  (s).  If  an  executor  de  son  tort  be  guilty  of 
that,  or  any  other  species  of  devastavit,  or  plead  ne  unques  execu- 
tor, and  it  be  found  against  him,  he  shall  be  charged  as  another  ex- 
ecutor de  bonis  propriis  (t)  :  but  in  general  cases  he  is  liable  only 
to  the  amount  of  the  assets  which  come  to  his  hands  (u). 

By  the  stat.  30  Car.  2.  c.  7.  (3)  made  perpetual  by  the  stat.  4  6c 
5  W.  &  M.  c.  24.  above  referred  to,  the  executor  of  an  executor  in 

(/)  Wells  v.  Fydell,  10  East,  315.  (</)  dottle  v.  Aldrich,  t  Mail  &  Sel. 

(to)  Com.  Dig-.  Admor.  C.  1.  While-  175. 

hall  v.  Squire,  Carth.  104.   Off.  Ex.  177.  (r)  Supr.  38. 

5  Co.  31.  (*')   Major  of  Norwich  v.  Johnson,  3 

(n)  Off.  Ex.  178.  Lev.  35.     Off.  Ex.  Suppl.  102. 

(o)  Off.  Ex.178.  (0  Off.  Ex.  157. 

(p)  Com.  Dig-.  Admor.  C.  3.  Sti.  384.  (u)  Dyer,  166  b.  note  11. 


(1)  Howell's  Mm.  v.  Smith,  2  M'Cord's  Rep.  517.  On  the  death  of  a  defend 
ant  in  an  action  of  debt,  a  summons  may  issue  to  an  executor  deson  tort  (there 
being-  no  legal  executor  or  administrator  of  the  deceased)  to  appear  and  defend 
the  action.  Where  an  executor  de  son  tort,  being  summoned,  appeared  to  an  ac- 
tion of  debt  brought  against  the  deceased,  and  confessed  the  action,  and  admitted 
the  debt  was  due  to  the  plaintiff.  An  auditor  was  then  appointed  to  ascertain 
the  sum  for  which  judgment  should  be  rendered,  regard  being-  had  to  the  assets, 
&c.  according  to  the  Act  of  1798,  ch.  101,  sub-ch.  8.  s.  9.  The  appointment  ot 
the  auditor  was  afterwards  stricken  out  by  the  Court,  and  a  judgment,  rendered 
on  the  confession  of  the  executor  de  son  tort,  for  the  debt  and  costs,  de  bonis  te&a 
ton's,  si  non  de  bonis  propriis,  as  to  costs.  Error  being  brought,  the  judgment 
was  reversed.     Norfolk's  Ex.  v.  Ganif,  2  Harr.  &  Johns.  435. 

(2)  Osborne  V.  Moss,  7  Johns.  Rc*p.  160. 

(3)  la  force  in  Pennsylvania.     3  Binn.  624.     Roberts'  Dig.  258. 


474  OF  REMEDIES  AGAINST  [BOOK   III. 

his  own  wrong  is  chargeable  on  a  devastavit  by  his  testator,  in  the 
same  manner  as  such  testator  would  have  been  if  living  [w). 

But  it  seems  that  an  executor  de  son  tort  of  an  executor  deson 
tort  is  not  liable  for  a  devastavit  committed  by  such  first  executor, 
either  at  common  law,  or  by  either  of  the  two  last  mentioned 
statutes  (cc). 

What  has  been  stated  in  regard  to  actions  against  executors,  is, 
in  the  main,  applicable  to  administrators,  whether  general  or  limit- 
ed. If  an  administrator  durante  minoritate  continue  in  the  pos- 
[475]  session  of  the  effects  after  the  executor  is  come  of  age,  he  may 
be  sued  either  by  the  executor  or  by  a  creditor  (y).  But  if  such 
administrator  administer  in  part,  and  deliver  to  the  executor,  on 
his  coming  of  age,  all  the  residue,  he  cannot  be  charged  by  a  stran- 
ger (z).  If  before  the  executor  attain  the  age  of  twenty-one,  the 
administrator  wasted  the  assets,  he  may  be  charged  on  the  special 
matter  by  the  executor  (a) ;  but  subsequent  to  that  period,  he  is 
not  liable  for  the  devastavit  at  the  suit  of  a  creditor.  The  creditor 
must  resort  against  the  executor,  who  is  entitled  to  his  remedy 
against  the  administrator  (b). 

The  executor  of  a  deceased  partner  and  the  survivor  cannot  be 
jointly  sued  for  a  debt  due  from  the  partnership,  because  the  former 
is  to  be  charged  de  bonis  testatoris,  the  latter  de  bonis  propriis(c); 
but  the  creditor  may  proceed  against  either,  who  may  claim  from 
the  other  contribution. (1) 

But  if  the  executors  of  a  deeeased  partner  continue  his  share  of 
the  partnership  property  in  trade  for  the  benefit  of  his  infant  daugh- 
ter, the)'  are  liable  upon  a  bill  drawn  for  the  accommodation  of  the 
partnership,  and  paid  in  discharge  of  a  partnership  debt,  although 
their  names  are  not  added  to  the  firm,   but  the   trade  is  carried 

(w)  Vid.  Com.  Dig.  Admon.  I.  3.  174",  175. 

(x)  Com.  Dig.  Admon.  1.  3.     AnJr.  («)  Latch.  160. 

252.     3  Bac.  Abr.  100,  in  note.  (b)  3  Bac.  Abr.  14.     Latch.   267.   1 

(y)  Com.  Dig.  Admon.  F.  1  Sid.  57.  Anders.  34.     6  Co.  18  b. 

1  Anders.  34.    ""  (e)  Hall  v.  Hurlam,  2  Lev.  228. 

(z)  Brooking    v.  Jennings,    1  Mod. 


(1)  Where  one  of  two  or  more  joint  contractors  dies,  subsequently  to  making 
the  contract,  the  survivors  alone  continue  reponsible  at  law,  the  personal  repre- 
sentatives of  the  deceased  partner  being  discharged  from  liability.  Ghw  on  Part- 
nership, 208.  Am.  edit.     1  Caines'  Ca.  123.     Kirov's  Rep.  86,  87- 

If  the  executor  or  administrator  therefore  be  sued,  he  may  either  plead  the 
survivorship  in  bar,  or  give  it  in  evidence  under  the  general  issue.  Gow,  ibid. 
Burgwin  v.  Hustler's  Mm.  Tayl.  Rep.  124.     S.  C.  2  Hayw.  Rep.  104. 

In  Pennsylvania,  however,  in  order  to  reach  the  estate  of  a  deceased  partner, 
an  action  of  assumpsit  will  be  sustained  against  his  executor,  if  the  surviving  part- 
ner be  a  certificated  bankrupt  before  action  brought;  for  there  being  no  Court  of 
Chancery  in  the  state,  a  creditor  could  not  come  at  the  fund  which  in  equity  is 
bound  for  his  debt,  unless  such  action  were  sustained;  and  in  such  a  case  a  plea 
in  abatement  would  be  ill,  for  the  defendant  could  not,  by  such  plea,  give  the 
plaintiff  another  person  liable  to  suit.     Lang  v.  Keppcle,  Ex.  1  Binn.  123. 


CHAP.  X.]  EXECUTORS   AT  LAW.  475 

on  by  the  other  partners  under  the  same  firm  as  before,  and  the 
executors,  when  they  divide  the  profit  and  loss  of  the  trade,  carry 
the  same  to  the  account  of  the  infant,  and  take  no  part  of  the  profits 
themselves  (d). 

By  the  stat.  8  Ann.  c.  14.  (e),  a  lessor  is  empowered  to  distrain 
within  six  calendar  months  after  a  lease  for  life,  or  for  years,  or  at 
will,  is  determined,  provided  his  own  title  or  interest,  as  well  as  the 
tenant's  possesion,  continue  at  the  time  of  the  distress.  In  case  a 
[476]  lessee  die  before  the  expiration  of  a  term,  and  his  executor 
continue  in  possession  during  the  remainder  and  after  the  expira- 
tion of  it,  a  distress  may  be  taken  for  rent  due  for  the  whole  term  (f). 

An  executor,  it  seems,  is  bound,  provided  he  have  assets,  to 
maintain  an  apprentice  till  the  term  is  expired  ;  for  a  distinction 
exists  between  a  covenant  to  maintain,  and  a  covenant  to  instruct 
an  apprentice  :  The  former  is  a  lien  on  the  executor,  although  not 
named,  in  respect  of  the  assets  ;  the  latter  is  a  judiciary  trust  an- 
nexed to  the  person  of  the  master  (^).(l)  But  justices  of  the  peace 
have^  generally  speaking,  no  authority  to  order  an  executor  to  main- 
tain an  apprentice,  for  such  a  jurisdiction  would  prevent  his  insist- 
ing by  a  plea  of  plene  administravit  on  a  deficiency  of  assets  as 
an  exemption  (A). 

By  the  custom  of  London,  it  is  said,  the  executor  is  bound  to 
put  the  apprentice  to  another  master  of  the  same  trade  (i). 

In  respect  to  a  parish  apprentice,  on  whose  binding  no  larger 
[477]  sum  than  five  pounds  shall  have  been  paid,  some  specific  re- 
gulations are,  in  the  event  of  the  master's  death,  prescribed  by  the 
stat.  32  Geo.  3.  c.  57.  which  enacts,  that  if  the  master  of  such  an 
apprentice  shall  die  during  the  term,  the  covenant  in  the  indenture 
for  his  maintenance  shall  not  continue  in  force  longer  than  three 
calendar  months  after  the  death  of  such  master,  during  which  the 
apprentice  shall  continue  to  live  with  and  serve  the  executors  or 
administrators,  or  with  such  person  as  they  shall  appoint :  And  in 
all  such  parish  indentures  of  apprenticeship  there  shall  be  annexed 
to  the  covenant  for  maintenance  a  proviso,  that  such  covenant 
shall  not  continue  longer  than  three  calendar  months  after  the 
death  of  the  master  ;  but  if  such  proviso  be  omitted,  the  covenant 

'(d)  Wightman  v.  Townroe  and  oth-  745.     Cro.  Eliz.  553..    Wadsworth  v. 

ers,  1  Mail.  &  Sel.  412.  Gye,  1  Sid.  216.     Rex  v.  Peck,  1  Salk. 

Ke)  Vid.  Com.  Dig.  Distress,  A.  2.  66.     Baxter   v.  Burfield,    Stra.    1266. 

3  Bl'.  Com.  11.  Vid.  supra,  152.  285. 

(/)  Braithwaite  v.  Cooksey  et  al.  1  (h)  Pett  v.  Inhabitants  of  Wingfield, 

H.  Bl.  Rep.  465.  Carth.  231.     Rex  v.  Pett,   Show.  405. 

(g)  Com.  Dig.  Justices  of  Peace,  B.  1  Salk.  66. 

57.     4  Bac.  Abr.  579.     1  Burn.  Just.  (i)  Per  Holt,  C.J.  S.  C.  1  Salk.  66. 
82.     1  Const's  Bott's  P.  L.  524.     PL 


(1)  See,  however,  The  Commonwealth  v.  King,  4  Serg.  &  Rawle,  109;  and  the 
remarks  of  Ch.  Justice  Tilghman  upon  the  cases  contained  in  note  (g). 


477  OF  REMEDIES  AGAINST  [BOOK   III. 

op  ihe  part  of  the  master  to  maintain  the  apprentice  shall  continue 
only  for  three  calendar  months  after  his  death,  within  which  peri- 
od two  justices  of  the  peace  where  the  master  died  shall,  on  the  ap- 
plication of  the  widow  of  such  master,  or  of  any  son,  daughter, 
brother,  or  of  any  executor  or  administrator  of  the  deceased,  by  in- 
dorsement on  the  indenture,  direct  the  apprentice  to  serve  another* 
master  for  the  remainder,  of  his  term.  The  6tatute  also  makes  the 
same  provisions  for  the  death  of  any  subsequent  master.  It  then 
directs,  that  if  no  application  be  made  to  two  justices  within  the 
three  months,  or  if  on  application  they  shall  not  think  fit  to  con- 
tinue such  apprenticeship,  the  indentures  shall  be  void.  It  further 
provides,  that  the  act  shall  not  extend  to  any  parish  apprentice  not 
living  with  or  serving  such  original  or  subsequent  master  at  the 
[478]  time  of  his  death.  And  lastly  it  enacts,  that  if  the  original 
or  any  subsequent  master,  or  the  personal  representative  of  such 
master,  having  assets,  during  the  three  months  shall  refuse  or  ne- 
glect to  maintain  and  provide  for  such  apprentice  according  to  the 
form  of  such  covenant,  two  justices,  on  complaint  of  the  appren- 
tice, or  the  parish  officers,  may  levy  sufficient  for  the  purpose  by 
distress  and  sale  of  the  effects  or  assets  of  such  master. 

Executors  and  administrators  are  within  the  custom  of  foreign 
attachment  ;  and,  therefore,  if  a  plaint  be  entered  in  the  court  of 
the  mayor  or  sheriff  of  London  against  an  executor  or  administra- 
tor, the  plaintiff  may  attach  money  or  goods  belonging  to  the  de- 
ceased in  the  hands  of  another  within  the  city  (A).  >  But  a  debt 
due  to  the  deceased  cannot  be  attached  on  a  plaint  against  his  per- 
sonal representative,  although  he  be  sued  under  that  description, 
unless  he  be  sued  for  a  debt  due  from  the  deceased  (/).  (1)  Nor 
shall  there  be  an  attachment  for  the  debt  of  a  testator  of  money 
or  goods  in  the  hands  of  the  executor,  unless  they  were  due  or  be- 
longing to  the  testator  at  the  time  of  his  death,  although  they  be 
assets  ;  as  if  an  executor  sell  the  goods  of  the  testator,  the  money 
cannot  be  attached  in  his  hands  {in).  Nor,  if  he  take  a  bond  for  a 
debt  due  to  the  testator,  can  the  money  payable  on  the  bond  be  at- 
tached (n).  Nor  if  an  executor  recover  damages  in  trespass  for 
[479]  the  testator's  goods,  or  on  a  covenant  made  with  him,  can 
there  be  an  attachment  of  the  damages  (o).  Nor,  if  money  be 
awarded  to  an  executor  on  a  submission  by  him  of  controversies 
between  his  testator  and  another  person,  can  the  money  due  by  the 

(/.-)  Com.  Dig-.  Attachment,  A.  B.    3  g-es  v.  Cox,  Cro.  Eliz.  843. 

Bac.  Abr.  258.     1  Roll.  Abr.  105.  vid.  •  (m)  Horsam  v.  Tnrget,  1  Ventr.  113. 

Dv.  196  b.  Eisher  v.  Lane,  3  Wils.  297.  (»)  S.  C.  1  Ventr.  113. 

S."C.  2  Bl.  Rep.  834.  (o)  Ibid.  112. 

(/)  Com.  Dig1.  Attachment,  D.   Hod- 


(1)    In   Pennsylvania    a  foreign  attachment    will  not   lie  against    executors 
M'Combe  v.  Dunchl  Prthgk  v.  Black's  Ex.  2  Dall.  Rep,  73.  97. 


CHAP.   X.]  EXECUTORS  AT  LAW.  479 

award  be  attached 
cy  ;  for  creditors 
being  warned  (</). 


award  be  attached  (p).     Nor  can  there  be  an  attachment  of  a  lega- 
cy ;  for  creditors  have  an  interest  in  it,  and  they  are  incapable  of. 


Sect.  IV. 
Of  remedies  against  executors  and  administrators  in  equity. 

An  executor  or  administrator  is  also,  in  his  representative  cha- 
racter, liable  to  all  equitable  demands,  with  regard  to  personal  pro- 
perty, that  existed  against  the  deceased  at  the. time  of  his  death. 

If,  pending  a  suit,  the  defendant  die,  it  shall  be  continued  by 
bill  of  revivor  against  his  executor  («). 

Legatees,  or  persons  in  distribution,  are  also  entitled  to  assert  in 
a  court  of  equity  their  claims  against  the  executor  or  administra- 
[4S0]  tor,  on  the  principle,  that  equity  considers  an  executor  as  a 
trustee  for  the  legatee  in  respect  to  his  legacy,  and  as  trustee  in 
certain  cases  for  the  next  of  kin  of  the  undisposed  surplus  (b).  It 
also  regards  the  administrator  as  trustee  for  the  parties  in  distribu- 
tion (c).  And  trusts  are  the  peculiar  objects  of  equitable  cogni- 
zance. Thus  a  bill  lies  for  a  personal  legacy;  or  for  a  discovery, 
and  an  account  of  assets  ;  or  for  the  distribution  of  an  intestate's 
personal  estate  (d).  And  an  administrator  cannot  avail  himself  of 
the  length  of  time,  as  an  answer  to  the  plaintiff's  bill  for  an  ac- 
count and  application  in  payment  of  debts,  where  he  has  not  plead- 
ed or  claimed  the  benefit  of  the  statute  of  limitations  (e).  So  it 
lies  for  the  discovery  of  assets,  merely  for  the  purpose  of  enabling 
the  plaintiff  to  maintain  an  action  at  law  against  an  executor  (f)  ; 
but  not  till  he  has  denied  assets  by  his  plea  to  the  action  (g). 

An  executor  having  admitted  a  large  balance  of  personal  estate 
to  be  in  his  hands,  was  ordered  to  pay  the  whole  into  court,  al- 
though he  stated  that  an  action  at  law  was  depending  against  him 
for  a  debt  to  a  considerable  amount  from  the  testator  ;  but  with 
liberty,  in  case  the  plaintiff  in  the  action  should  recover,  to  apply 
to  the  court  to  have  a  sufficient  sum  paid  out  again.  •  The  plaintiff 

(p)  Horsam  v.  Target,  1  Ventr.  112,  by,  1  Vern.  133,  134.     2  Ch.  Ca.  95. 

11:3.     S.  C.  1  Lev.  306.  Anon.  2  Ventr.  362.     2  Ch.  Rep.  167. 

(7)  1  Ch.  Ca.  257.    1  Roll.  Abr.  551.  (d)   1  P.  Wms.   287.     2  Fonbl.  321. 

3  Bac.  Abr.  259.     Nay.  115.  note  (d).  ibid.  322.     Com.  Dig.  Chan. 

(«)  Mitf.  63,  64.     '  3  D.  1. 

{b)  4  Bac.  Abr.  447.     Anon.  1   Atk.  (e)    Cockshutt    v.   Pollard,    1  Wils. 

491.     parrington    v.    Knightley,    1  P.  132. 

Wins.  544.     Wind  v.  Jekyl,    ib.   575.  (f)  Com.  Dig-.  Chancery,  2  G.  3. 

Prac.  Reg.  2d  edit.  209.  {g)  Ibid.  3  B.  2. 

(c)  2  Fonbl.  322.   Matthews  v.  Nevv- 

41 


480  OF  REMEDIES  AGAINST  [BOOK   III. 

in  the  action  did  recover,  and  the  court  ordered  the  amount  to  be 
paid  out  to  him,  and  not  to  the  executor  (A). 

And  where  an  executor  admitted  a  balance  due  from  him  to  his 
testator  upon  an  unsettled  account,  notwithstanding  he  by  his  an- 
swer stated  there  were  debts  owing  from  the  estate  to  which  he 
was  liable  to  the  extent  of  assets,  including  that  balance,  the  testa- 
tor having  died  three  years  before,  he  was  ordered  to  pay  the  ba- 
lance into  court,  as  all  the  debts  ought  to  have  been  paid  (i). 

So  where  executors  having  personal  estate  of  the  testator  given 
to  them  by  the  will,  upon  trust  to  lay  out  upon  good  and  sufficient 
security,  for  an  infant,  to  be  paid  on  his  coming  of  age,  after  a  de- 
cree for  an  account  and  notice  by  the  next  friend  of  the  infant 
plaintiff  lending  a  part  of  such  personal  estate  upon  mortgage, 
they  were  ordered  to  pay  the  same  into  court;  but  the  motion  ask- 
in  g  in  the  alternative,  that  the  executors  might  be  ordered  to  re- 
place the  amount  by  so  much  stock  as  the  same  would  have  pur- 
chased at  the  time  of  the  investment,  was  to  that  extent  refused  (k). 

And  an  executor,  by  the  schedule  to  his  answer,  acknowledging 
that  he  had  received  the  testator's  property,  and  lent  it  on  a  pro- 
missory note,  was  ordered  to  pay  the  money  into  court  (7). 

An  executor  may  be  also  called  upon  in  equity  to  account  for 
interest  he  has  made  of  the  testator's  estate  (m).  And  he  may  be 
charged  with  interest  upon  balances,  though  not  prayed  by  the 
bill  O). 

And  although  the  rule  be  not  invariable,  that  an  executor  in  all 
cases  shall  pay  interest  for  money  employed  in  the  course  of  his 
trade  ;  yet  if,  without  any  reasonable  cause,  he  detain  it  for  any 
length  of  time  from  the  persons  entitled,  and  apply  it  to  the  pur- 
poses of  his  trade,  or  even  suffer  it  to  lie  idle  in  his  hands,  he 
[481]  shall  be  subject  to  the  payment  of  interest  (o).  (1) 

Ordinarily,  the  court  on  a  bill  filed  for  a  legacy  of  stock,  does 
not  inquire,  whether  the  stock  legacy  could  have  been  invested  at 
an  earlier  period;  but  where  the  executor  is  a  trustee  also,  and  re- 
tains the  legacy  without  investing  it,  he  is  liable  for  any  loss,  occa- 
sioned by  the  non-investment  (/?). 

And  if  an  executor  is  directed  to  invest  money  in  the  funds,  or 

(h)  Yare  v.  Harmon,  2  Cox's  Rep.  kins  v.  Baynton,  1  Bro.  Ch.  Rep.  375. 

377.  (n)  Turner  v.    Turner,    1    Jac.  and 

(i)    Mortlock  v.  Leathes,    2  Meriv.  Walk.  Rep.  39. 

491.  (o)  Newton  v.   Bennet,    1  Bro.  Ch. 

(k)  Widdowson  v.  Duck,    2   Meriv.  Rep.  359.     Seers  v.  Hind,  1  Yes.  jun. 

494.  294.     Ashburnham   v.   Thompson,    13 

(/)  Vigrass  v.  Binfield,  3  Madd.  Rep. '  Ves.  402. 

62.  (p)  Byrchall  v.  Bradford,  6  Madd. 

(to)  11  Vin.  Abr.  433.  in  note.    Per-  Rep.  13. 


(1)  Case  of  Flint ham's  Appeal,  11  Serg.  &  Rawle,  16.     Scfteiffelin  v.  Stewart, 
1  Johns.  Cha.  Rep.  620. 


CHAP.   X.]  EXECUTORS  IN   EQUITY*  481 

to  lay  it  out  upon  mortgage  at  51.  per  cent,  interest,  and  he  has  from 
time  to  lime  balances  in  his  hands,  and  neglects  to  do  so,  inquiries 
will  be  directed  at  the  original  hearing  concerning  the  balances  re- 
tained by  him,  and  the  prices  of  the  funds  at  the  times  when  such 
balances  were  in  his  hands  (q). 

In  respect  to  the  rate  of  interest  to  which  in  such  cases  he  shall 
be  liable,  if  he  make  use  of  the  money,  he  ought  to  pay  the  inte- 
rest he  has  made.  He  ought  .not  to  derive  any  personal  advantage 
from  the  trust  property.  If,  therefore,  it  be  established  in  evi- 
dence that  he  used  the  property  in  his  trade,  the  court  takes  it  for 
granted  that  the  trade  produced  51.  per  cent,  at  the  least,  and  it 
is  incumbent  upon  him  to  shew  that  he  made  less.  But  in  case  of 
mere  negligence  to  lay  the  money  out  for  the  benefit  of  the  estate, 
although  it  be  true  that  complete  indemnity  is  not  attained,  unless 
the  executor  pay  that  interest  which  might  have  been  made,  yet 
that  is  not  the  principle  on  which  the  court  acts.  It  has  laid 
down  a  rule  in  regard  to  the  quantum  of  interest,  namely  4  percent., 
from  which  it  does  not  depart  without  some  special  reason.  And 
mere  negligence  is  not  sufficient  to  produce  an  exception  :  Conse- 
quently, if  there  be  no  evidence  of  the  executor's  having  employ- 
ed the  fund,  but  mere  neglect  to  pay  it,  he  cannot  be  charged  with 
more  than  4 per  cent,  interest.  And  even  when  an  executor  mix- 
ed the  fund  with  his  own  money  at  his  banker's,  the  benefit  deriv- 
ed by  him  not  appearing,  Lord  Thurlow,  C.  held  him  chargeable 
only  with  interest  at  4  per  cent. :  Although  Lord  Loughborough,  C. 
was  of  opinion,  in  which  Sir  William  Grant,  M.  R.  in  a  late  case  ap- 
peared to  concur,  that  if  a  trader  lodge  money  at  his  banker's  it 
answers  the  purpose  of  his  credit,  and  it  should  be  held  to  be  an 
employment  in  his  trade  (/•).  And  Sir  John  Leach,  V.  C.  in  a  sub, 
sequent  case,  charged  an  executor  with  interest  at  5  per  cent,  who 
mixed  his  testator's  money  at  his  banker's  with  his  own,  receiving 
only  an  interest  of  3^  per  cent,  instead  of  laying  it  out  for  the  be 
riefit  of  the  parties  entitled  (s).  Lut  although  the  court  does  not 
usually  charge  an  executor  with  a  greater  rate  of  interest  than  4 
per  cent,  where  lie  has  called  in  the  money  for  purposes  of  the 
will,  yet  if  it  were  outstanding  on  good  security,  at  the  time  of 
the  testator's  death,  at  5  per  cent,  and  he  call  it  in  without  any  pur- 
pose connected  with  the  trust,  and  hold  the  whole- in  his  hands 
without  attempting  to  lay  it  out,  he  shall  be  charged  with  interest 
at  the  rate  of  5  per  cent.,  on  the  ground  of  a  general  dereliction 
of  duty*on  his  part;  and  though  a  small  part  of  the  money  so  call- 
ed in  carried  only  4i  per  cent,  that  will  make  no  diilerenee  in  his 
favour  (/). 

(q)  Hockley    v.    Bantock,    1    Uuss.  (s)  Harris  v.  Docura,  Aprifl  818.  MS* 

Rep.  1  11,  (/)  Mm-lc-v  v.  Ward,  1 1  Ves.  jun.  ^81 , 

(;•)   Rocke  v.Hart,   11  Ves.  jun.  58,  Crackelt   v.*Bethunc,    1  Jac.  &  Walk. 

Sutton  v   Sharp ej  1  Russ,  Hep,  146.  Rep.  686, 


481  OF  REMEDIES  AGAINST  [BOOK   III. 

But  if  a  will  direct  the  executor  to  lend  at  the  best  interest  a 
sum  of  money,  which  at  the  time  of  the  testator's  death  is  out- 
standing at  four  per  cent.,  and  the  executor  suffer  it  to  continue 
so,  he  shall  be  personally  liable  to  pay  five  (u).  And  so  if  execu- 
tors be  directed  to  lay  out  the  residue  in  the  purchase  of  land,  or 
upon  heritable  or  personal  securities,  at  such  rate  of  interest  as 
they  should  think  reasonable,  and  they  lend  the  fund  to  one  of 
themselves  on  bond  at  4  per  cent.,  Avhen  5  per  cent,  might  have 
been  made  by  heritable  or  government  securities  ;  the  executor 
borrowing  shall  pay  5 per  cent;  for  in  contracting  with  himself 
he  cannot  spare  himself  (v).  If  there  be  an  express  trust  to  make 
improvement  of  the  testator's  estate,  and  the  executor  will  nut 
honestly  endeavour  to  improve  it,  he  shall  be  considered  as  having 
lent  the  money  to  himself  on  the  same  terms  on  which  he  would 
have  lent  it  to  others;  and  as  often  as  he  ought  to  have  lent  it,  if 
it  be  principal,  and  as  often  as  he  ought  to  have  received  it,  and 
lent  it  to  others,  if  the  demand  be  interest;  and  consequently  he 
shall  be  charged  with  interest  upon  interest:  but  in  general  the  ac- 
count shall  not  betaken  against  him  from  the  moment  of  the  tes- 
tator's death  upon  all  sums  received  and  paid  by  him,  but  some 
time  is  fixed,  at  which  the  principal  is  said  to  be  in  his  hands,  so 
as  that  it  was  capable  of  being  laid  out;  and  he  is  then  to  be  first 
charged  with  the  principal  and  with  subsequent  interest,  and  for 
that  purpose  annual  rests  in  the  taking  of  such  accounts  are  most 
usual.  But  where  a  testator  gave  a  legacy  to  his  executor  in  full 
for  his  trouble  in  executing  the  will,  and  declared  that  he  should 
have  no  commission,  nor  derive  any  advantage  from  keeping  any 
money  in  his  hands  without  duly  accounting  for  the  legal  interest 
thereof;  and  after  providing  fipr  the  maintenance  and  education  of 
his  children  out  of  the  interest  of  their  respective  portions,  direct- 
ed that  the  surplus  interest  should  accumulate  for  their  benefit, 
and  be  laid  out  on  the  public  funds  for  that  purpose;  and  the  exe- 
cutor kept  the  fund  in  his  hands  for  a  long  period  of  time,  without 
attempting  any  accumulation;  he  was  held  liable  to  interest  at  5 
per  cent,  on  all  the  sums  of  money  which  came  to  his  hands,  from 
the  time  he  received  them  respectively  so  long  as  they  continued 
in  his  hands:  and  in  taking  the  accounts  the  master  was  ordered 
to  make  half-yearly  rests,  for  the  purpose  of  charging  him  with 
compound  interest,  (that  is  to  say)  by  stating  the  whole  amount  of 
the  interest  which  had  accrued  at  the  end  of  each  half-year,  and  ad- 
ding that  to  the  principal  of  the  next  half-year  (w). 

Nor,  in  case  the  executor  be  expressly  directed  to  improve  the 
estate,  shall  he  be  permitted  to  redeem  himself  by  accounting  upon 
the  supposition  of  the  money  having  been  laid  out  in  the  public 
funds,  if  in  point  of  fact  it  were  not  so  laid  out;  or  if  he  laid  out 

(u)  Forbes  v.  Ro.s:>,  2  Bio.  Ch.  Rep.  (>r)  Raphael  v.  Roehm,  11  Ves.  juts. 
420.  02.  ;md  13  Ves.  jun.  107, 

(v)  Forbes  v.  Ratos,  2  Cox's  Rep.  113. 


CHAP.  X.]  EXECUTORS   IN   EQUITY.  481 

the  property  in  the  public  funds,  and  then  sold  out  the  stock  at  a 
great  advance,  if  at  the  close  of  the  trust  the  price  he  less  than  he 
sold  at,  it  is  not  sufficient  for  him  to  olfer  back  the  stock,  but  he 
shall  answer  for  the  amount  of  the  money  for  which  he  sold  it 
out(q).  Upon  the  same  principles,  in  case  of  the  bankruptcy  of 
an  executor  having  failed  to  comply  witli  a  direction  in  the  will  to 
accumulate  the  interest,  his  estate  shall  be  charged  with  interest  at 
the  rate  of  5  per  cent,  with  rests  (r).  But  an  executor  shall  not 
be  charged  with  interest  on  a  balance  in  his  hands,  which  he  re- 
tained under  a  misapprehension,  for  which  there  was  some  colour, 
of  his  having  a  right  to  it  (V). 

Nor,  if  an  executor  compound  debts  due  from  the  testator,  or 
buy  them  in  for  less  than  their  amount,  shall  he  be  personally  en- 
titled to  the  benefit  of  the  composition  :  but  other  creditors,  or  the 
legatees,  or  the  party  entitled  to  the  surplus,  shall  have  the  advan- 
tage of  it  (if).  (1) 

Yel,  if  an  executor  lend  money  on  real  security,  which  at  that 
time  there  was  no  reason  to  suspect,  and  afterwards  such  security 
prove  bad,  he  shall  not  be  accountable  for  the  loss,  any  more  than 
he  would  have  been  entitled  to  the  produce  of_  it  if  it  had  been 
sufficient  (u).  So  where  A.  an  executor,  paid  tHe  assets  into  the 
hands  of  B.,  his  co-executor,  with  whom  the  testator  was  used  to 
keep  cash  as  his  banker;  on  the  failure  of  B.,  the  court  held,  that 
A.  ought  not  to  suffer  for  having  trusted  him,  whom  the  testator 
trusted  in  his  lifetime,  and  at  his  death  appointed  one  of  his  exe- 
cutors (w). 

So,  although,  generally  speaking,  if  an  executor  compound  or 
[4S2]  release  a  debt  to  the  testator,  he  shall  answer  for  the  amount; 
still,  if  he  appear  to  have  acted  for  the  benefit  of  the  estate,  he 
shall  not  be  charged  (.v).  (2) 

Formerly  an  executor  could  not  be  compelled  of  course  to  se- 
cure a  future  legacy,  on  the  principle  that  where  the  testator  had 
thought  fit  to  repose  a  trust,  unless  some  breach  of  it  were  shewn, 
or  a  tendency  to  a  breach,  the  court  would  continue  to  confide  in 
the  same  hand;  for  such  a  purpose  it  was  necessary  to  shew  mis- 
conduct on  the  part  of  the  executor,  or  his  insolvency  (y):  Or,  in 
the  case  of  an  executrix,  that  she  had  married  a  person  in  needy. 

(q)  Ibid.  108.  4  Burn.  Eccl.  L.  428.    Supr.  428. 

(r)  Dorford  v.  Dorford,  12  Vcs.  jun.  (w)  4  Burn.  Eccl.  L.  428.     Church- 

127.  hill  v.  Lady  Hobson,  1  P.  Wms.  243. 

(s)  Bruere    v.  Pemberton,    12    Vcs.  (,r)  11  Vin.  Abr.  432.     Blue  v.  Mar- 

jun.  386.  shall,  3  P.  Wms.  381.    Vid.  supr.  429. 

it)  11  Vin.  Abr.  433.    Anon.  1  Salk.  (yj  Slanning-  v.    Style,    3  P.  Wms. 

155.  pi.  4.  336.    11  Vin.   Abr.  426,  427,  428,  432. 

(u)  Brown >. Litton,  1  P.  Wms.  111.  3  Bac.  Abr.  8.    1  Atk.  505.  3  Atk.  101. 


(1)  Ca$e  of  Heager's  Execidorsj  15  Serg  &  Rawle,  65. 

(2)  P&sey  v.  Clemson,  0  Serg.  &  Eawlc,  201. 


482  OF  REMEDIES  AGAINST  [liOOE   I1J. 

circumstances  (:).  But,  according  to  the  present  practice,  where 
a  legacy  is  payable  at  a  future  period,  the  legatee,  without  any 
suggestion  of  an  abuse  of  the  trust,  or  that  the  fund  is  in  danger, 
has  a  right  to  call  upon  the  executor  to  haye  it  divided  from  the 
bulk  of  the  estate,  and  secured  and  appropriated  for  his  benefit,  as 
well  where  it  is  contingent,  as  where  it  is  vested  (a).  Annuitants 
are  likewise  entitled  to  the  same  equity,  and  to  compel  the  execu- 
tor to  set  apart  a  sufficient  fund  for  the  regular  payment  of  their 
annuities  (6). 

[4S3]  An  executor  is  in  general  personally  bound  by  an  ad- 
mission of  assets  express,  or  implied,  as  by  the  payment  of  inte- 
rest: but  in  either  case  he  may  be  let  in  to  shew,  why  it  should 
not  charge  him,  as  that  the  money  was  deposited  in  the  hands  of 
bankers,  who  have  failed;  or  that  his  admission  was  grounded  on  a 
mistake  (c).  Such  admission  is  also  waived  by  the  plaintiff's  pro- 
ceeding to  an  account  of  assets,  and  procuring  a  receiver  to  be  ap- 
pointed (of). 

In  case  an  executor  be  decreed  to  pay  interest  on  account  of  a 
breach  of  trust,  or  because  he  has  neglected  to  lay  .money  out  for 
the  benefit  of  the  estate  (e),  he  is  liable  to  costs  of  course  (f).  \*i 
an  executor  hav*e  acted  fraudulently,  the  court  will  decree  costs 
against  him  (g),  although  the  will  direct  that  his  expenses  shall  be 
allowed  out  of  the  testator's  estate  (h).  He  is  also  subject  to  costs 
in  equity  as  well  as  at  law,  if  he  has  misconducted  himself  by  pay- 
ing simple  contract  debts  in  preference  to  bond-creditors  (/). 

But  an  executor  shall  have  his  costs,  although  he  make  a  claim, 
and  fail,  if  it  were  merely  a  submission  of  the  point  for  the  opinion 
of  the  court  (k).    ■ 

[484]  If  two  executors  or  administrators  join  in  a  receipt,  one 
only  of  whom  receives  the  money,  equity  has  been  stated  to  adopt 
this  distinction,  that  in  such  case,  each  is  liable  for  the  whole  (/)  as 
to  creditors,  who  are  entitled  to  the  full  benefit  of  law,  although 
one  of  such  personal  representatives  might  have  given  an  effectual 
discharge;  but  that  with  respect  to  legatees,  or  parties  claiming 
distribution,  as  they  have  no  legal  remedy,  one  executor  or  ad- 
ministrator shall  not  be  charged  merely  by  joining  in  the  receipt, 

(z)  Rous  v.  Noble,  2  Vern.  249.  362.    Rocke  v.   Hart,  11  Vcs.  jun.  58. 

(a)  4  Bac.  Abr.  448.  Green  v.  Pigot,         (/)  Prac.  Reg.  2d  edit.  210.     Seers 

1    Bro.    Ch.    Rep.     103.      Cooper    v.  v.  Hind,    1   Yes.   jun.   294.    Sed  vide 

Douglas,  2  Biro.  Ch.  Rep.  232.   Strange  Ashburnham    v.    Thompson,    13    Yes 

v.  Harris,  3  Bro.  Ch.    Rep.   365.     Per-  402. 

rand    v.    Prentice,    Ambl.  273.     Prac.         (a;)  Recch  v.  Kinnegal,  1  Yez.  126. 

Reg.  2d  edit.  270.  Horsley  v.  Chaloner,  2  Vez.  85. 

(A)  Shinning    v.    Style,    3  P.  Wins.         (A)   Prac.    Reg.   2d  edit.    150,    151. 

335.  Hathornthwaite  v.  Russel,  2  Atk.  1J6 

(c)  Horsley  v.  Chaldner,  2  Vez.  85.         (*)  Jeffries  v.  Harrison,   1  Atlc.  468. 

(r/)  Wall  v.  Busflby,  1  Bro.  Ch.  Rep.  (/,)   Prac.  Rcff.  2d  edit.  152.   Rashley 

484.  '. .  Masters,    1  Vcs.  jun 

(r)  Newton  v.   Bennet,    1   Bro.   11.  ■  (/)  3  Bac.  Abr.  31, 


CHAP.  X.]  EXECUTORS  IN  EQUITY.  484 

when  the  other  has  received  the  money;  for  that  the  addition  of 
his  name  is  only  matter  of  form,  the  substantial  part  is  the  act  of 
receiving,  and  is  alone  regarded  in  conscience  (m).  (1)  But  this 
distinction  between  legatees  or  parties  in  distribution,  and  credi- 
tors, appears  to  rest  on  no  authority  (n).  The  rule  is  general,  that 
executors,  joining  in  a  receipt,  shall  all  be  answerable  (o).  It  has, 
indeed,  in  some  instances  been  broken  in  upon  (/?),  and  Sir  Richard 
P.  Arden,  M.  R.  denied  it  to  be  universally  applicable  ((/).  It 
seems  an  exception,  if  an  executor  receive  the  money  without  the 
consent  of  his  co-executor,  and  they  afterwards  sign  the  receipt  (r), 
[485]  for  by  that  act  they  did  not  enable  him  to  obtain  the  pay- 
ment. So  if  one  executor  places  the  property  in  the  hands  of  the 
other,  who  happens  to  be  a  banker,  or  in  such  a  situation  that  the 
act  is  not  improvident  ;  he  shall  not  be  charged  in  case  of  a  loss, 
for  if  he  had  been  a  sole  executor,  and  had  under  the  same  circum- 
stances deposited  the  money  with  a  banker,  he  would  not  have 
been  liable  (s). 

This,  however,  is  clear  from  all  the  cases,  that,  where  by  any  act 
done  by  one  executor,  any  part  of  the  estate  comes  to  the  hands 
of  his  co-executor,  the  former  will  be  answerable  for  the  latter, 
in  the  same  manner  as  he  would  have  been  for  a  stranger,  whom 
he  had  enabled  to  receive  it  (/).  Therefore  where  executors  joined 
in  a  transfer  of  stock  to  a  co-executor,  upon  a  representation  that 
it  was  required  for  debts,  and  he  wasted  part  of  the  produce,  they 
were  charged  with  the  whole,  that  they  could  not  prove  the  appli- 
cation of  to  that  purpose  (u). 

Co-trustees  are  in  this  respect  contradistinguished  from  co-execu- 
tors. In  the  case  of  co-trustees,  as  each  hath  not  a  power  over  the 
whole  of  the  fund,  their  joining  in  a  receipt  is  necessary,  and,  con- 
sequently, although  they  join  in  such  receipt,  yet  it  is  a  general 
rule  that  the  trustee  who  receives  the  money  shall  be  alone  charge- 
able.    But  in  the  case  of  co-executors,  each  has  a  power  over  the 

(m)    Churchill  v.    Hopson,   1   Salk.         (r)  1  P.  Wms.  241.  note  1.  83.  note 

318.  S.  C.  1  P-  Wms.  241.  1  Eq.  Ca.  1.  Read  v.  Truelove,  Ambl.  417.     Sad- 

Abr.  398.  Murrell  v.  Cox,  2  Vern.  570.  ler  v.    Hobbs,    2  Bro.  Ch.  Rep.    114. 

(n)    Sadler   v.    Hobbs,    2  Bro.    Ch.  Scurfield  v.  Howes,  3  Bro.    Ch.  Rep. 

Rep.  117.     1  P.   Wms.  243.  in  note.  3  90.     Hovey  v.  Blakeman,  4  Ves.  jun. 

Bac.  Abr.  31.  in  note.  596.      Westley    v.    Clarke,    1    Eden's 

(o)  Fellowes  v.  Mitchell,  1  P.  Wms.  Rep.  357. 
81.    Aplyn  v.  Brewer,  Prec.  Ch.  173.         (s)    Chambers    v.    Minchin,    7   Ves. 

Leigh  v.  Barry,  3  Atk.  584.   Ex  parte  jun.  197,  198. 

Belchier,  Ambl.  219.   Sadler  v.  Hobbs,         (t)  1  P.  Wms.  241,  note  1.     3  Bro. 

2  Bro.  Ch.  Rep.  116.  Ch.  Rep.  97.   Doyle  v.  Blake,  2  Scho. 

(/))   Churchill  v.  .Hopson,    1    Salk.  &  Lef.  231. 
318.  S.  C.  1  P.  Wms.  241.    1  P.  Wms.         («)  Lord  Shipbrook   v.    Lord    Hin- 

83.  note  (1).  chinbrook,  16  Ves.  jun.  477.     Uncler- 

(q)  Scurfield  v.  Howes,  3  Bro.  Ch.  wood  v.  Stevens,   1  Meri.  Rep.  713. 
Rep.  94. 

(1)  Ace.  Appail  of  Brown,  Ex.  of  Edgar,  1  Dall.  Rep.  311. 


485  OF  REMEDIES  AGAINST  [BOOK  III. 

fund,  ami  a  co-executor  joining  in  a  receipt  is  altogether  unnecessa- 
ry; therefore,  if  he  act  without  necessity,  and  join  with  his  co-ex- 
ecutor in  such  receipt,  he  shall  in  general  be  responsible  for  the 
consequences  :  He  assumes  a  power  over  the  property,  and  it  shall 
[4S6]  not  be  afterwards  permitted  to  him  to  say,  that  he  had  no 
controul  over  it  (x).  So,  if  Executors  confiding  in  the  representa- 
tion of  their  co-executor,  that  stock  standing  in  the  testator's  name 
is  wanting  for  the  payment  of  debts,  do  join  in  a  transfer  of  the 
stock  to  him,  if  he  misapply  the  whole  or  any  part  of  it,  they  are 
chargeable  with  him  to  the  extent  of  such  misapplication  (y).  la 
like  manner,  if  an  executor  has  been  dealing  with  the  assets  much 
beyond  that  period  of  time,  in  which,  in  the  ordinary  course,  debts 
would  be  paid,  and  he  applies  to  his  co-executors  to  have  such  fund 
transferred  to  him  alone,  and  on  enquiring,  they  satisfy  themselves, 
that  there  are  debts  unpaid,  and  his  real  purpose  were  to  apply  the 
fund  in  discharge  of  such  debts,  if  it  afterwards  appear,  that  he  had 
in  his  hands  another  fund  sufficient  for  the  payment  of  those  debts, 
and  such  application  of  the  fund  was  not  necessary,  nor  was  it  in 
fact  devoted  to  the  payment  of  debts,  they  shall  be  responsible. 
They  are,  in  such  case,  subject  to  the  imputation  of  negligence  in 
being  too  easy  with  their  co-executor  ;  too  remiss  in  not  enquiring 
how  for  so  long  a  time,  he  had  been  acting  in  the  administration  of 
the  assets  (~). 

But  within  a  reasonable  time,  if  executors,  after  the  testator's 
death,  join  in  a  transfer  of  stock  to  their  co-executor,  on  his  repre- 
sentation, that  it  is  requisite  for  the  payment  of  debts  :  they  are 
not  responsible  if  they  can  prove  he  applied  it  to  that  purpose,  al- 
though he  had  possessed,  if  not  by  their  means,  other  part  of  the 
assets  which  he  had  wasted  (a).  And  though  it  be  a  settled  rule, 
that  if  an  executor  contribute  in  any  way  to  enable  the  other  to 
obtain  possession  of  the  assets,  he  shall  be  answerable  for  their 
misapplication  ;  yet  the  rule  does  not  extend  to  those  cases,  in 
which  an  executor  is  merely  passive,  and  does  not  obstruct  the 
other  in  receiving  the  property,  for  it  is  not  incumbent  upon  one 
executor  by  force  to  prevent  its  getting  into  the  hands  of  his  co- 
executor  (•&). 

So  a  co-executor,  who  proved,  but  never  acted,  having  received 
a  bill  by  the  post  on  account  of  the  estate,  and  transmitted  it  im- 
mediately to  the  acting  executor,  was  held  not  to  be  responsible 
for  the  administration  of  the  property  (c).  So  if  A.  interested 
in  the  fund  act  in  authorising  B.   one  executor  to  part  with  it  to 

(jc)  Chambers    v.    Minchin,    7  Ves.  ch'mbrook,   11  Yes.  jun.  254. 

jnn.    186.     P.rice   v.    Stokes,    11  Ves.  (//)  Ibid.  254. 

jun.  323,  324.  (//)  Longford  v.   Gascoignc,   11  Vcs. 

(y)    Lord  Shipbrook    v.    Lord  Ilin-  jun.  383. 

chinbrook,  11  Ves.  jun.  252.     16  Ves.  (c)  Balchen    v.    Scott,    2  Vcs,  jun. 

478.  678. 

(c)    Lord   Shipbrook    v.    Lord  Ilin- 


CHAP.  X.]  EXECUTORS  IN  EQUITY.  486 

C.  his  co-executor,  and  it  be  wasted,  B.  shall  not  be  responsible  to 
the  extent  of  A.'s  interest:  But  B.  shall  be  responsible  to  the 
other  parties,  who  may  be  interested  in  the  fund,  in  case  they  did 
not  acquiesce  in  his  transferring  it  to  C.(d). 

Although  one  executor  admit  assets,  an  account  shall  be  decreed 
against  his  co-executor,  who  does  not  admit  them  (e).  And  where 
an  infant  legatee  filed  a  bill  for  an  account  against  two  executors, 
although  one  of  them  in  his  answer  denied  having  either  proved 
the  will,  or  received  any  assets,  the  account  was  directed  against 
both  (/). 

If  an  executor  under  the  express  authority  of  the  will  carry  on 
trade  with  the  testator's  general  assets,  not  only  such  assets,  but 
even  his  own  property  will  be  subject  to  his  bankruptcy. 

If  the  trade  be  beneficial,  the  profits  are  applicable  to  the  pur- 
poses of  the  will,  and  the  executor  derives  no  personal  benefit 
from  the  success  of  the  trade.  If  the  trade  prove  a  losing  concern, 
the  executor,  on  a  failure  of  the  assets,  will  be  personally  liable  to 
the  loss. 

[487]  If  an  executor,  without  any  authority  from  the  will,  take 
upon  himself  to  trade  with  the  assets,  the  testator's  estate  will  not 
be  liable  in  case  of  his  bankruptcy  ;  (1)  the  testator's  creditors  and 
legatees  will  have  a  right  to  prove  demands  for  such  of  the  assets 
as  have  been  wasted  by  the  executor  in  the  trade,  in  proportion  to 
their  respective  interests  :  And  with  respect  to  such  of  the  assets 
as  can  be  specifically  distinguished  to  be  part  of  the  testator's  es- 
tate, they  will  not  pass  by  the  assignment  of  the  commissioners  ; 
the  executor  holding  them  alieno  jure>  they  will  not  be  liable  to 
his  bankruptcy  (g). 

But  the  testator  may  by  his  will  qualify  the  power  of  his  execu- 
tor to  carry  on  trade,  and  may  limit  it  to  a  specific  part  of  the  as- 
sets, which  he  may  sever  from  the  general  mass  of  his  property 
for  that  purpose  ;  and  then,  in  the  event  of  the  bankruptcy  of  the 
executor,  the  rest  of  the  assets  will  not  be  affected  by  the  commis- 
sion, although  the  whole  of  the  executor's  private  property  will 
be  subject  to  its  operation  (h). 

If  the  executor  of  a  trader  only  dispose  of  the  stock  in  trade,  it 
will  not  make  him  a  trader,  or  subject  to  a  commission  of  bank- 
ruptcy.    Thus,  where  the  executor  of  a  wine-cooper  found  it  ne- 

(d)  Brice  v.  Stokes,  11  Ves.  jun.  (g)  See  Ex  parte  Garland,  10  Ves. 
319  J  jun.  110.  Supr.  166.   &  Cooke's  B.  L. 

(e)  Com.  Dig.  Chancery  (2  G.  3.)  4th  edit.  67.  and  Whittnarsh's  B.  L. 
Norton    v.    Turville,    2  P.  Wms.  145.  2nd  edit.  268. 

Wall  v.  Bushby,  1  Bro.  Ch.  Rep.  488.         (h)  Ex  parte  Garland,  10  Ves.  jun. 

(/)  Price  v.'Yaughan,  2  Anstr.  Rep.     110. 
524. 


(1)  Nor  to  any  loss  occasioned  by  such  unauthorized  trading.     Hall  v.  Cat* 
laghatk's  Mm.  1  Serg.  &  Rawle,  241. 

42 


488  REMEDIES  AGAINST  EXECUTORS         [BOOK  III, 

[48S]  cessary  to  buy  wines  to  refine  the  stock  left  by  the  testator, 
this  was  held  not  to  constitute  him  a  trader  (i). 

It*  an  executor  become  a  bankrupt,  his  bankruptcy  does  not  di- 
vest him  of  his  legal  right  of  executorship,  nor  does  the  commis- 
sioner's assignment  affect  the  assets,  except  in  regard  to  such  bene- 
ficial interest,  as  the  bankrupt  himself  may  be  entitled  to.  But, 
although  a  bankrupt  executor  may  strictly  be  the  proper  hand  to 
receive  the  assets,  if  his  assignees  be  possessed  of  any  part  of  the 
property,  the  Court  of  Chancery  will,  for  the  benefit  of  creditors 
and  legatees,  appoint  a  receiver  for  the  same  ;  or  will  direct  the 
bankrupt  himself  to  be  admitted  a  creditor  for  what  he  shall  be  in- 
debted to  the  estate  ;  nor  is  this  practice  incongruous,  as  he  acts  in 
auter  droit.  Yet  to  prevent  embezzlement,  the  court,  on  such 
proof,  will  order  the  dividends  to  be  paid  into  the  Bank,  subject 
to  the  demands  on  the  testator's  estate  (.&).  So  where  A.  a  bank- 
rupt, and  also  B.  claimed  to  be  executors  of  a  creditor  of  A.  and 
a  suit  was  pending  in  the  ecclesiastical  court  in  regard  to  the  exe- 
cutorship ;  the  Lord  Chancellor  permitted  B.  to  prove  the  debt  un- 
[4S9]  der  the  commission,  and  directed  the  dividends  to  be  paid 
into  the  Bank,  to  abide  the  event  of  the  litigation  (/).  And  where 
an  executor,  in  consequence  of  his  bankruptcy  becomes  destitute, 
and  incapable  of  exercising  his  functions,  and  elects  to  relinquish 
his  interest  in  the  testator's  property,  the  Court  of  Chancery  will 
permit  a  creditor  of  the  testator  to  file  a  bill  for  himself,  and  to  call 
in  the  outstanding  assets  for  the  purpose  of  administering  them  (m). 
And  a  receiver  has  been  appointed  before  answer  upon  an  affida- 
vit of  misapplication  and  danger  to  the  property  in  the  hands  of 
an  executor,  and  the  co-executor's  consenting  to  the  order  (n). 

An  executor  being  out  of  the  jurisdiction  in  Scotland,  a  receiver 
was  appointed  under  the  36  Geo.  3.  c.  90.  but  administration  hav- 
ing been  granted,  a  motion  was  made  on  the  part  of  the  adminis- 
trator for  an  injunction  to  restrain  the  receiver  from  acting.  The 
Lord  Chancellor  referred  it  to  the  master  to  reconsider  the  appoint- 
ment of  a  receiver,  regard  being  had  to  the  circumstance  of  admin- 
istration having  been  granted  (o). 

A  writ  of  ne  exeat  regno  against  a  feme  covert  administratrix, 
cannot  be  sustained  (p). 

(»)  Cooke's  B.  L.   4th  edit.  67.  and  (/)  Ex  parte  Shakeshaft,  3  Bro.  Ch. 

Whitmarsh's  B.  L.  2nd  edit.  16.  Rep.  198. 

(k)    Cooke's    B.   L.    133,   134,   135.  (m)  Burroughs    v.    Elton,     11  Ves. 

137.     Stone,  131.      Ex  parte  Ellis,    1  jun.  29. 

Atk.  101.     Ex  parte  Butler,    ib.  213.  (n)  Middleton  v.  Dodswell,  13  Ves. 

Butler  v.    Richardson,  Ambl.  74.     Ex  266. 

parte  Markland,  2  P.  Wms.    546.     Ex  (o)    Faith    v.    Dunbar,    Coop.  Rep 

parte  Leek,  2  Bro.  Ch.  Rep.  596.   Vid.  200. 

also  supr.  429.  and  Whitmarsh's  B.  1,.  (p)  Pannel  v.    Tayler,   1  Turn.  96. 
2nd  edit.  269. 


CHAi'.    X.J        IN   THE  ECCLESIASTICAL  COUH'l  .  -189 

Skct.   V. 

Of  remedies  against  executors  and  administrators  in  the  Ec- 
clesiastical Court. 

Legatees,  and  the  next  of  kin  may  proceed  against  the  execu- 
tor or  administrator  in  the  ecclesiastical  court.  That  court  has  not 
only  jurisdiction  over  the  probate  of  wills,  and  the  granting  of  ad- 
ministrations, but  has  also,  as  incident  to  the  same,  authority  to 
enforce  the  payment  of  legacies  (a)  ;  and,  according  to  the  statute, 
the  distribution  of  an  intestate's  effects.  (1)  In  respect  to  legacies, 
the  cognizance  of  them  in  former  times  belonged  exclusively  to 
that  judicature.  The  Court  of  Chancery,  till  Lord  Nottingham 
extended  the  system  of  equitable  jurisprudence,  administered  no 
relief  to  legatees  (b).  In  regard  also  to  distribution,  equity,  as  the 
act  of  parliament  contains  no  negative  words,  has  a  concurrent  ju- 
risdiction with  the  ordinary,  and  in  both  cases  as  being  armed  with 
[490]  larger  powers,  affords  a  more  effectual  relief  (c). 

As  a  court  of  equity,  and  the  spiritual  court  have  in  these  points 
a  concurrent  jurisdiction,  whichever  of  them  has  first  possession 
of  the  cause  has  a  right  to  proceed  (d).  But  where  it  appears  that 
the  ordinary  cannot  administer  complete  justice,  equity,  without 
regard  to  such  priority,  will  interpose.  As,  where  a  husband  sues 
in  the  spiritual  court  for  a  legacy  bequeathed  to  the  wife,  the  Court 
of  Chancery  will  grant  an  injunction  to  stay  the  proceedings,  since 
the  ecclesiastical  judge  has  no  authority  to  compel  a  settlement  (e). 
So  a  legacy  given  to  an  infant  is  more  properly  cognizable  in  equi- 
ty, since  that  jurisdiction  can  alone  secure  the  money  for  the  child's 
benefit  (/). 

The  spiritual  jurisdiction  extends  to  legacies  only  of  personal 
property;  therefore,  if  land  be  devised  to  be  sold  for  the  payment  of 

(«)  4  Bac.  Abr.  446.  3  Bl.  Com.  98.  Jewson  v.    Moulson,  2  Atk.  420.    Ni- 

(b)  Deeks  v.  Strult,  5  Term  Rep.  cholas  v.  Nicholas,  Prec.  Chan.  548. 
692.  See  1  P.  Wms.  575.  2  Aes.  jun.  676.   Meales  v.   Meales,  5 

(c)  Vid.  2  Fonbl.  2d  edit.  414,  note  Ves.  jun.  517,  in  note.  See  also  10 
(d.)  Matthews  v.  Newby,   1  Vern.  134.  Yes.  jun.  577.  &supr.  321. 

(rf)  4  Bac.  447.  Toth.  114.  Nicho-  (/)  Howell  v.  Waldron,  1  Vern. 
las  v.  Nicholas,  Prec.  Ch.  548.  ■    26.     Anon.  1  Atk.  491. 

(e)    Hill    v.    Turner,     1   Atk.     516. 


(1)  See  an  instance  in  which  Gov.  Bull  (of  South  Carolina),  in  the  year  1765, 
in  his  character  of  ordinary,  summoned  an  administrator,  al  the  instance  of  the 
guardians  of  the  intestate's  cliildrcn,  to  account  for  his  administration,  and  upon 
jiis  non-compliance,  passed  sentence  of  the  greater  excommunication  against  linn. 
Grimki  on  Executors,  preface,  page  vii. 


490  REMEDIES  AGAINST  EXECUTORS         [BOOK  III. 

legacies,  they  can  be  sued  for  only  in  a  court  of  equity,  because 
they  arise  out  of  the  real  estate  (g).  Equity  has  also  the  exclu- 
sive cognizance  of  those  cases  in  which  there  is  a  will,  and  the 
[491]  residue  is  undisposed  of;  for  then  as  we  have  seen  (A),  the 
executor  is.  a  trustee  for  the  residue,  and  the  ordinary  cannot  com- 
pel a  distribution  of  it,  because  he  cannot  enforce  the  execution  of 
a  trust  (e).  Nor  has  he  a  power  to  compel  the  de,btor  of  an  intes- 
tate to  pay  his  debt  into  court,  although  such  debtor  he  the  person 
applying  for  a  distribution,  for  that  would  be  to  hold  a  plea  of 
debt ;  but  in  that  case  he  may  refuse  to  proceed  to  a  distribution, 
till  the  party  shall  bring  it  in  {k).  So,  it  seems,  that  if  a  legatee 
take  a  bond  from  the  executor  for  payment  of  the  legacy,  and  af- 
terwards sue  him  in  the  spiritual  court  for  the  same,  a  prohibition 
will  be  granted  ;  for  by  taking  the  obligation  the  nature  of  the  de- 
mand is  changed,  and  becomes  a  debt  recoverable  in  the  temporal 
courts  (/). 

In  case  a  legatee,  or  the  next  of  kin  elect  to  sue  in  the  spiritual 
court,  the  executor  or  administrator  must  there  exhibit  an  inventory 
of  the  property,  if  he  has  not  done  so  before,  and  bring  in  an  ac- 
count {in). 

Of  the  nature  of  an  inventory  I  have  already  treated  {n).  It  is 
to  contain  a  full,  true,  and  perfect  schedule  of  the  deceased's  effects. 
[492]  The  account  is  to  state  in  what  manner  they  have  been  dis- 
posed of  (o). 

Neither  an  executor  nor  an  administrator  can  be  cited  by  the  or- 
dinary ex  officio  to  account  {p).  The  executor,  we  have  seen,  is 
bound  by  his  oath  to  make  an  inventory  of  the  personal  estate,  and 
exhibit  the  same  into  the  registry  of  the  spiritual  court  at  the  time  as- 
signed him  for  that  purpose,  and  render  a  just  account,  when  law- 
fully required,  that  is  to  say,  at  the  suit  of  a  legatee  ;  and  in  such 
case  he  is  bound  not  only  to  produce  an  account,  but  also  to  prove 
the  different  items  of  it  (q). 

The  payment  of  sums  under  forty  shillings  shall  be  proved  mere- 
ly by  his  oath,  if  there  appear  no  fraud  by  dividing  greater  sums 
into  less.     Of  the  payment  of  sums  to  a  higher  amount  vouchers 

(?)  4  Bac.   Abr.  446.      Dyer,    151.  Luke  v.  Alderne,    2  Vera.    31.     Sed 

Palm.  120.     Cro.  Jac.  279,  364.     Cro.  Dodderidge,    J.    contr.    2  Roll.     Rep. 

Car.    16.  2  Roll.  Abr.  285.     Bastard  v.  160.    vid.  Sadler  v.    Daniel,    10  Mud. 

Stockvvell,  2  Show.  50.  21. 

(//)  Supr.  351,  479.  (m)  4  Burn.  Eccl.  L.  425. 

(/')  2  Fonbl.  2d  edit.  414,  note  (d)  (n)  Vid.  supr.  247.  et  seq. 
ad  fin.  Petit  v.  Smith,  5  Mod.  247.  (o)  Greerside  v.  Benson,  3  Atk.  252. 
Hatton  v.  Hatton,  Stra.  865.  Petit  v.  (p)  Com.  Dig.  Admon.  C.  3.  Arch- 
Smith,  Ld.  Raym.  86.  Rex  v.  Raines,  bp.  of  Canterbury  v.  Wills,  1  Salk. 
ib.  363.  Farrington  v.  Knightly,  1  P.  315,316.  Greerside  v.  Benson,  3  Atk. 
Wms.  546,  547,  549.  253. 

(k)   Gierke    v.    Clerke,    Ld.  Raym.  (r/)  Archbp.  of  Canterbury  T.Wills, 

585.  1   Salk.  316.  \id.  also  Archbp.  of  Can- 

^/)  Goodwyn  v.  Goodwyn,  Yelv.  38.  terbury  v.  House,  Cowp.  111. 


CHAP.  X.]   IN  THE  ECCLESIASTICAL  COURT.         492 

must  also  be  exhibited  (r).  The  adverse  party  shall  be  at  liberty 
to  disprove  such  account.  If  it  be  false,  the  executor  shall  be  liable 
to  the  penalties  of  perjury  (s). 

After  the  death  of  an  executor  sums  under  forty  shillings  shall 
not  be  allowed  on  the  oath  of  his  representative  ;  for  such  payments 
can  be  substantiated  only  by  him  who  made  them  (/). 

[493]  In  regard  to  the  administrator,  before  the  statute  of  dis- 
tribution, according  to  the  condition  of  the  administration  bond,  he 
also  was  bound  to  exhibit  an  inventory  and  render  an  account  when 
required.  But  pursuant  to  that  statute  the  administrator,  we  may 
remember,  enters  into  a  bond  with  two  or  more  sureties,  condition- 
ed for  his  exhibiting  an  inventory  of  the  effects,  and  an  account  of 
the  same,  at  the  respective  times  specified.  Therefore,  without 
citation  or  suit,  he  ought,  in  strictness,  to  appear  on  the  day,  and 
produce  his  account  in  court.  But,  in  that  case,  it  is  neither  verified 
by  oath,  nor  liable  to  be  examined.  If,  however,  a  party  in  dis- 
tribution, who  is  in  the  nature  of  legatee  by  statute,  and  therefore 
entitled  to  an  account,  shall  come  in  and  controvert  it  ;  it  must  be 
sworn  to,  and  is  subject  to  investigation  ;  when  the  proceedings 
shall  be  the  same  as  in  the  case  of  an  executor  (w). 

Thus  it  appears  that  the  stat.  1  JaC.  2.  c.  17.  (w),  which  pro- 
vides that  no  administrator  shall  be  cited  according  to  the  statute 
of  distributions  to  render  an  account  of  the  personal  estate  of  his  in- 
testate otherwise  than  by  inventory,  unless  at  the  instance  or 
prosecution  of  some  person  in  behalf  of  a  minor,  or  having  a  de- 
mand out  of  such  personal  estate,  as  a  creditor,  or  next  of  kin,  nor 
be  compellable  to  account  before  the  ordinary  ;  had,  in  truth,  no 
operation,  as  such  was  the  law  before  (x). 

[494]  All  the  legatees,  or  parties  in  distribution  are  to  be  cited 
to  appear  at  the  making  of  the  "account  ;  for  it  shall  not  be  conclu- 
sive on  such  as  shall  be  absent,  and  have  nob  been  cited  (y).  An 
executor  or  administrator,  therefore,  when  he  is  called  upon  by  any 
one  party  to  account,  should  cite  the  legatees,  or  next  of  kin  in 
special,  and  all  others  in  general,  having,  or  pretending  to  have,  an 
interest,  to  be  present,  if  they  think  fit,  at  the  passing  of  the  same; 
and  then,  on  their  appearance,  or  contumacy  in  not  appearing,  the 
judge  shall  proceed  (z). 

Although  the  spiritual  court  have,  as  incident  to  the"  jurisdiction 
of  wills,  the  jurisdiction  also  of  legacies  ;  yet,  if  a  temporal  matter 
be  pleaded  in  bar  of  an  ecclesiastical  claim,  they  must  proceed  ac- 

(;•)  4  Burn.   Eccl.  L.  427.     Ought.         (w)  Vid.  4  Burn.  Eccl.  L.  486. 
347,  348.  (.r)  Archbp.  of  Canterbury  v.  Wills, 

(s)  4  Burn.  Eccl.  L.  427.     Ought.     Salk.  315,  316. 

346.  (v)  4  Burn.  Eccl.  L.  426.     Swinb. 
(/)  4  Burn.  Eccl.  L.   427.     Ought,     p.  6.  s.  20. 

347.  (2)  4  Burn.  Eccl.  L.   426.     Ought, 
(u)  Archbp.  of  Canterbury  v.  Wills,     354,  355,  356. 

1  Salk.  315,  316. 


494  REMEDIES  AGAINST  EXECUTORS  [BOOK  III. 

cording  to  the  common  law  («).  Therefore,  if  payment  he  plead- 
ed in  bar  of  a  legacy,  and  there  he  but  one  witness,  whom  the  ec- 
clesiastical court  will  not  admit,  because  their  law  requires  two  wit- 
nesses, a  prohibition  shall  issue  (b).  But  it  is  not  a  sufficient 
ground  for  a  prohibition  to  suggest,  that  the  plaintiff  had  only  one 
witness  to  prove  the  fact,  unless  the  party  allege  he  offered  such 
proof,  and  it  was  refused  for  insufficiency  (c). 

If  the  spiritual  court  shall  attempt  a  distribution  contrary  to  the 
rules  of  the  common  law,  it  shall  be  prevented  by  a  prohibition, 
because  it  is  restricted  by  the  statute  of  distribution  to  those  rules  (d). 

[495]  After  the  investigation  of  the  account,  if  the  ordinary  find 
it  true  and  perfect,  he  shall  pronounce  for  its  validity.  And  in 
case  all  parties  interested  as  above  mentioned  have  been  cited,  such 
sentence  shall  be  final,  and  the  executor  or  administrator  shall  be 
subject  to  no  farther  suit  (e). 

In  case  there  shall  appear  assets  for  the  entire,  or  partial  payment 
of  the  legacy,  or  for  a  distribution,  the  same  shall  be  decreed  ac- 
cordingly. 

An  executor  or  administrator  is  also  bound  to  exhibit  an  account 
upon  oath,  at  the  promotion  of  a  creditor  ;  but  a  creditor  is  not  per- 
mitted to  call  for  vouchers,  nor  to  offer  any  objections  to  the  account ; 
in  respect  to  him  the  oath  of  the  party  is  at  once  conclusive  :  for 
such  litigation  would  be  altogether  fruitless,  since  the  spiritual 
court  has  no  authority  to  award  the  payment  of  a  debt  (./*)• 

The  object  of  a  creditor  in  suing  for  an  account  in  the  spiritual 
court  is  to  gain  some  insight  into  the  state  of  the  fund,  previously 
to  his  proceeding  in  an  action  at  common  law  ;  but  a  bill  in  equity 
for  a  discovery  of  the  assets  is  the  more  usual,  as  it  is  the  more  effec- 
tual remedy  (g). 

Yet  a  creditor,  as  well  as  the  next  of  kin,  has  a  right  ex  debilo 
[496]  justitiae,  to  an«ssignment  by  the  ordinary  of  the  administra- 
tion bond,  and  to  sue  in  the  name  of  the  ordinary,  as  well  the  sure- 
ties as  the  principal,  shewing  for  breach  the  administrator's  not  ex- 
hibiting a  true  inventory,  or  account  (A).  But  a  creditor  has  no 
right  in  such  case  to  assign  for  breach  the  non-payment  of  his  debt, 
or  a  devastavit,  for  the  words  of  the  condition,  "he  is  well  and 
truly  to  administer,"  are  construed  to  apply  merely  to  the  bringing 

(a-\  4  Bac.  Abr.  447.     1  Roll.   Abr. '  Davis,   1  P.  Wms.  47,  49. 

298, '299.     Hob.  12.  12  Co.  65.     Het-  (r)  Carth.  143,  144. 

lev,  87.  2  Inst.  608.    Sid.  161.  (d)    Blackborough    v.    Davis,     1  P. 

\b)  Bagnall  v.  Stokes,  Cro.  Eliz.  88.  Wins.  49. 

666.    Shatter   v.    Friend,    Show.    158.  (c)  4  Burn.  Eccl.  L.  428.   Swinb.  p. 

173.     Richardson   v.    Disborov,   Ventr.  6.  s.  21. 

291.     Shatter  v.    Friend,  3  Mod.  283.  (/)  Vid.  Nov.  78. 

Breedon   v.    Gill,    1  Ld.    Raym.    220.  (g)  Vid.  supr.  479.  489,  490. 

Cook    v.    Licence,    346.      Startup    v.  (A)  Greerside  v.  Benson,  3  Atk.  248. 

Dodderidge,  2  Ld.  Raym.  1161.   1172.  Archbp.     of    Canterbury     v.     House, 

1211.   Shatter  v.    Friend,   2Salk.  547.  Coup.    140.     Vid.    2  Fonbl.    414.    2d 

S.    C.     Garth.   142.     Blackborough  v.  edit,  note  (d). 


CHAP.  X.]        IN  THE  ECCLESIASTICAL  COURT.  496 

in  of  a  true  inventory,  and  account,  and  not  the  payment  of  the  in- 
testate's debts  (/). 

An  executor  or  administrator  shall  be  allowed  in  the  spiritual 
court  all  his  reasonable  expences,  the  rule  in  respect  to  which  is, 
that  he  shall  receive  no  profit,  nor  incur  any  loss  (&).  A  party, 
having  an  interest,  who  prays  an  account,  shall  not  be  condemned 
to  costs,  unless  he  make  objections  to  it,  which  he  fails  to  substan- 
tiate (/). 

A  legacy  may  be  recovered  in  the  spiritual  court  against  an  exe- 
ccutor  of  his  own  wrong  (m). 

Legatees  may  file  a  bill  in  chancery  for  an  account  against  the  ex- 
ecutor, and  at  the  same  time,  call  upon  him  in  the  prerogative 
court  to  exhibit  an  inventory  (;i). 

[497]  So  where  a  suit  is  pending  in  the  ecclesiastical  court  in  re- 
gard to  the  probate  of  a  will,  or  right  of  administration,  a  bill  in 
chancery  will  lie  by  a  party  interested  for  an  account  of  the  person- 
al estate,  on  the  ground,  that  the  ecclesiastical  court  has  no  means 
of  securing  the  effects  in  the  interim  (o).  And  the  court  will  pro- 
tect the  property  by  appointing  a  receiver  (/?). 

The  ecclesiastical  court  cannot  entertain  a  suit  for  proctors'  fees, 
since  they  are  a  temporal  duty,  for  which  an  action  may  be  main- 
tained in  the  temporal  courts  (q). 


(i)  4  Burn.  Eccl.  L.  428.  430.  Lutw. 
882.  Archbp.  of  Canterbury  v.  Wills, 
1  Salk.  315,  316.  Com.  Dig.  Admon. 
C.3. 

(k)  4  Burn.  Eccl.  L.  428.  Lind.  178. 

(/)  4  Burn.  Eccl.  L.  428.     Floy.  38. 

(n\)  4  Bac.  Abr.  448.  1  Roll.  Abr. 
919. 

(«)  11  Vin.  Abr.  427.  3  Chan.  Rep. 
72. 

(o)  Wright  v.  Bluck,  1  Vern.  106. 
Dulwich  College  v.  Johnson,  2  Vevn. 


49.  Phipps  v.  Steward,  1  Atk.  285, 
2  Bro.  P.  C.  476.  Morgan  v.  Harris, 
2  Bro.  Ch.  Rep.  121. 

(p)  Atkinson  v.  Henshaw,  2  Ves, 
and  Bea.  85.     Ball  v.   Oliver,  ib.  96. 

(q)  2  Burn.  Eccl.  L.  239.  Com.  Dig, 
Prohibition  (F.  5.)  Pollard  v.  Gerrard, 
Ld.  Raym.  703.  S.  C.  1  Salk.  333. 
Horton  v.  Wilson,  1  Mod.  167.  John- 
son v.  Lee,  5  Mod.  238.  Skin.  589. 
Bunb.  70.  Pitts  v.  Evans,  2  Stra.  1108. 
Dougl.  629. 


APPENDIX 


OF 


STAMP  DUTIES. 


By  the  Statute  55  Geo.  3.  c.  184.  the  Stamp  Duties  imposed  by 
the  48  Geo.  3.  c.  149.  the  44  Geo.  3.  c.  98.  and  the  45  Geo. 
3.  c.  28.  are  repealed,  arid  the  following  Stamp  Duties  are 
imposed: 

PROBATE  of  a  Will,  and  Letters  of  Administra-        Duty. 

tion  with  a  Will  annexed,  to  be  granted  in 

England :  L.      s.      d. 

CONFIRMATION  of  any  Testament  testamen- 
tary, or  Exk  thereto,  to  be  expeded  in  any 
Commissary  Court  in  Scotland,  where  the 
Deceased  shall  have  died  before  or  upon  the 
10th  Day  of  October  1808,  and  subsequentto 
the  10th  Day  of  October  1804; 

INVENTORY  to  .be  exhibited  and  recorded  in 
any  Commissary  Court  in  Scotland,  of  the 
Estate  and  Effects  of  any  Person  deceased, 
who  shall  have  died  after  the  10th  Day  of 
October  1808,  and  have  left  any  Testament 
or  testamentary  Disposition  of  his  or  her 
Personal  or  Moveable  Estate  and  Effects,  or 
any  Part  thereof; 


498  APPENDIX, 

INVENTORY— continued.  Duty. 


Where  the  Estate  and  Effects  for  or  in  respect  L.  s.  d. 
of  which  such  Probate,  Letters  of  Admi- 
nistration, Confirmation  or  Eik  respect- 
ively, shall  be  granted  or  expeded,  or 
whereof  such  inventory  shall  be  exhibited 
and  recorded,  exclusive  of  what  the  De- 
ceased shall  have  been  possessed  of  or  en- 
titled to  as  a  Trustee  for  any  other  Person 
or  Pe?-sons,  and  not  beneficially,  shall  be 
above  the  Value  of  201.  and  under  the 

Value  of  1001.  -  0   10     0 

of   the  Value  of    1001.    and  under  the 

Value  of  2001.  -  -         -  2     0     0 

of   the  Value  of    2001.    and  under  the 

Value  of  3001.  -        .  -    .    -  5     0     0 

of   the  Value  of   3001.  and    under  the 

Value  of  4501.  ...  800 

of  the  Value  of    4501.    and    under  the 

Value  of  6001.  -  -  11     0     0 

of   the  Value  of   6001.    and  under  the 

Value  of  8001.  -  15     0     0 

of   the  Value  of   8001.    and    under  the 

Value  of  1,0001.  -  22     0     0 

of  the  Value  of  l,00ol.  and  under  the 

Value  of   1,5001.         -         -  30     0     0 

of  the  Value  of  1,5001.  and  under  the 

Value  of  2,0001.  -  40     o     o 

of  the  Value  of  2,0001.   and  under  the 

Value  of  3,0001.  -         -         -  50     0     0* 

of  the  Value  of  3,000l.   and  under  the 

Value  of  4,0001.  -  60     0     0 

of  the  Value  of  4,000l.  and  under  the 

Value  of  5,0001.  ...  80     0     0 

of  the  Value  of  5,0001.  and  under  the 

Value  of  6,0001.  -         •         -         -        100     0     0 

[499]        of  the  Value  of  6,0001.  and  under  the 

Value  of  7,0001.  -        120     0     0 


APPENDIX. 
INVENTORY— continued. 


Value  of  8,0001. 
of  the  Value  of   8,0001.   and    under   the 

Value  of  9,0001. 
of  the  Value   of  9,000l.  and  under  the 

Value  of  10,0001. 
*of  the  Value  of    10,0001.  and  under  the 

Value  of  12,0001. 
of  the  Value  of   12,0001.  and  under  the 

Value  of  14,0001. 
of  the  Value  of   14,0001.  and  under  the 

Value  of  16,0001. 
of  the  Value  of  16,0001.   and  under  the 

Value  of  18,0001. 
of  the  Value  of   18,0001.  and  under  the 

Value  of  20,0001. 
of  the  Value  of  20,0001.  and  under  the 

Value  of  25,0001. 
of  the  Value  of  25,0001.  and  under  the 

Value  of  30,0001. 
of  the  Value  of  30,0001.  and  under  the 

Value  of  35,0001.         -         - 
of  the  Value  of  35,0001.  and  under  the 

Value  of  40,0001.         -  -         -         -      '525     0     0 

•of  the  Value  of  40,0001.  and   under  the 

Value  of  45,0001.         -         -         -         -       600     0     0 
of  the  Value  of  45,OOOJ.  and  under  the 

Value  of  50,0001.         -         -         -         -       675     0     0 
of  the  Value  of  50,0001.  and  under  the 

Value  of  60,0001.         -  -         -  750     0     0 

of  the  Value  of  60,0001.  and   under  the 

Value  of  70,0001.        -  900     0     0 

of  the  Value  of  70,0001.  and  under  the 

Value  of  80,0001.         ....     i?050     0     0 
[500]  of  the  Value  of  80,0001.   and   under  the 

Value  of  90,0001.         ....     i}200     0     0 
of  the  Value  of  90,0001.  and   under  the 

Value  of  100,0001.       ....    1,J50     o     0 


499 

Du 

ty- 

L. 

s.      d. 

140 

0   0  . 

160 

> 

0  0 

180 

0  o 

200 

0   0 

-   220 

0  0 

250 

0  0 

280 

0   0 

310 

0   0 

350 

0   0 

400 

0   0 

450 

0   0 

500  APPENDIX. 

INVENTORY— continued. .  Duty. 


of  the  Value  of   100,0001:  and  under  the      L.     s.     d. 

Value  of  120,0001.         -  -  -    1,500     0     0 

of  the  Value  of  120,0001.  and  under  the 

Value  of  140,0001.         -  -  -     1,800     0     0 

of  the  Value  of   140,0001.  and  under  the 

Value  of  160,0001.        -  -  -    2,100     0     0 

of  the  Value  of  160,0001.  and  under  the 

Value  of  180,0001.         -  -  -    2,400     0     0 

of  the  Value  of  180,0001.  and  under  the 

Value  of  200,0001.         -  -  -    2,700.    0     O 

of  the  Value  of  200,0001.  and  under  the 

Value  of  250,0001.  -  -  -  3,000     0     0 

of  the  Value  of  250,0001.  and  under  the 

Value  of  300,0001.        -  -  -    3,750     0     0 

of  the  Value  of  300,0001.  and  under  the 

Value  of  350,Q00l.         -  -  -    4,500     0     O 

of  the  Value  of  350,0001.  and  under  the 

Value  of  400,0001.         -  -  -    5,250     O     O 

of  the  Value  of  400,0001.  and  under  the 

Value  of  500,0001.         -  -  -    6,000     0     0 

of  the  Value  of  500,0001.  and  under  the 

Value  of  600,0001.  •      -  -    7,500     0     0 

of  the  Value  of  600,0001.  and  under  the 

Value  of  700,0001.        -  -  -    9,000     0     0 

of  the  Value  of  700,0001.  and  under  the     • 

Value  of  800,0001.        -  -  10,500     0     0 

of  the  Value  of  800,0001.  and  under  the 

Value  of  900,0001.         -  -  12,000     0     0. 

of  the  Value  of  900,0001.  and  under  the 

Value  of  1 ,000,0001.      -  -  1 3,500     o     0 

of   the   Value   of    1,000,0001.    and    up- 
wards -  -  -  15,000     0     0 
[501]          LETTERS  OF  ADMINISTRATION, 
without  a  Will  annexed,  to  be  granted  in 
England  : 
CONFIRMATION  of  any  TESTAMENT  dative, 
to  be  expeded  in  any  Commissary  Court  in  Scot- 
land, where  the  Deceased  shall  have  died  before 


APPENDIX.  501 

Duty. 


or  upon  the    10th   Day  of  October    1808,  and      L.      s.  .  d. 
subsequent  to  the  10th  Day  of  October  1804  ; 
INVENTORY  to  be  exhibited  and  recorded  in  any 
Commissary  Court  in  Scotland,  of  the  Estate 
and  Effects  of  any  Person  deceased  who  shall 
have  died  after  the  10th  Day  of  October  1808, 
■without  leaving  any  Testament  or  testamentary 
Disposition  of  his  or  her  Personal  or  Moveable 
Estate  or  Effects,  or  any  part  thereof; 
Where  the  Estate  and  Effects  for  or  in  res- 
pect of  which  such  Letters  of  Administra 
tion  or  Confirmation  respectively  shall  be 
granted  or  expeded,  or  whereof  such  Inven- 
tory shall  be  exhibited  and   recorded,  ex- 
clusive of  what  the  Deceased  shall  have 
been  possessed  of  or  entitled  to  as  a  Trus- 
tee for  any  other  Person  or  Persons,  and 
not  beneficially,  shall  be 

above  the  Value  of  201.  and  under  the 

Value  of  501.  -  -  -  0   10     0 

of    the  Value  of   50l.   and  under  the 

Value  of  1001.  -  -  -  10     0 

of  the  Value   of  1001.  and  under  the 

Value  of  2001.  -  -  -  3    'or    o 

of  the  Value  of  2001.  and  under  the 

Value  of  3001.  -  -  -  8     0    0 

of  the  Value  of  3001.  and  under  the 

Value  of  4501.  -  -  -         lloo 

[502]  of  the  Value  of  4501.  and  under  the 

Value  of  6001.  -  -  -  15     0     0 

of  the  Value  of  6001.  and  under  the 

Value  of  .8001.  -  -  22     0     O 

of  the  Value  of  8001.  and  under  the 

Value  of  1,0001.        -  -  30     0     0 

of  the  Value  of  1,0001.  and  under  the 

Value  of   1,5001.         -  -  45     0     O 

of  the'.  Value  of  l,500l.  and  under  the 
Value  of  2,0001,    '    -  -  60    o    o 


502  APPENDIX. 

INVENTORY— continued.  Duty. 


of  the  Value  of  2,000l.  and  under  the  L.    s.     d. 

Value  of  3,0001.       -  -  -  75    o    o 

of  the  Value  of  3,000l.  and  under  the 

Value  of  4,0001.  -  -  90     0     0 

of  the  Value  of  4,0001.  and   under  the 

Value  of  5,0001.        -  -  -  120     0     0 

of   the  Value  of  5,000l.  and  under  the 

Value  of  6,0001.         -  -  -  150     0     0 

of  the  Value  of  G,000l.  and  under  the 

Value  of  7,0001.        -  -  -  180     0     o 

of  the  Value  of  7,000l.  and  under  the 

Value  of  8,0001.         -  -  -  210     0     0 

of  the  Value  of  8,000l.  and  under  the 

Value  of  9,0001.        -  -  -         '240     0    o 

of  the  Value  of  9,0001.  and  under  the 

Value  of  10,0001.       -  -  -       .    270     0     o 

of  the  Value  of  10,0001.  and  under  the 

Value  of  12,0001.         -  -  -  300     0     0 

of  the  Value  of  12,0001.  and  under  the 

Value  of  14,0001.       -  -  -  330     0     0 

of  the  Value  of  14,0001.  and  under  the 

Value  of  16,0001.      *  -  -  375     O     o 

of  the  Value  of  16,0001.  and  under  the 

Value  of  18,0001.         -  -  -  420     0     0 

of  the  Value  of  18,0001.  and  under  the 

Value  of  20,0001.       -  -  -  465     0     0 

[503]  of  the  Value  of  20,0001.  and  under  the 

Value  of  25,0001.       -  -  525     0     0 

of  the  Value  of  25,0001.  and  under  the 

Value  of  30,0001.       -  .  600     0     0 

of  the  Value  of  30,0001.  and  under  the 

Value  of  35,0001.  -  -  675     0     0 

of  the  Value  of  35,0001.  and  under  the 

Value  of  40,0001.       -  -  -  785     0     0 

of  the  Value  of  40,0001.  and  under  the 

Value  of  45,0001.       -  -  -  900     0     O 

ol  the  Value  of  45,0001.  and  under  the 

Value  of  50,0001.      -  -  1,010    6    o 


APPENDIX, 
INVENTORY— continued. 

of  the  Value  of  50,0001.  and  under  the 

Value  of  60,0001. 
of  the  Value  of  60,0001.  and  under  the 

Value  of  70,0001. 
of  the  Value  of  70,0001.  and  under  the 

Value  of  80,0001. 
of  the  Value  of  80,000.  and  under  the 

Value  of  90,0001.        * 
of  the  Value  of  90,0001. «and  under  the 

Value  of  100,0001. 
of  the  Value  of  100,0001.  and  under  the 

Value  of  120,0001. 
of  the  Value  of  120,0001.  and  under  the 

Value  of  140,0001. 
of  the  Value  of  140,0001.  and  under  the 

Value  of  160,0001. 
of  the  Value  of  160,0001.  and  under  the 

Value  of  180,0001. 
of  the  Value  of  180,0001.  and  under  the 

Value  of  200,0001. 
of  the  Value  of  200,0001.  and  under  the 

Value  of  250,0001. 
of  the  Value  of  250,0001.  and  under  the 

Value  of  300,0001. 
[504]        of  the  Value  of  300,0001.  and  under  the 

Value  of  350,0001.       -  -        ,     - 

of  the  Value  of  350,  0001.  and  under  the 

Value  of  400,0001. 
of  the  Value  of  400,0001.  and  under  the 

Value  of  500,0001. 
of  the  Value  of  500,0001.  and  under  the 

Value  of  600,0001. 
of  the  Value  of  600,0001.  and  under  the 

Value  of  700,0001. 
of  the  Value  of  700,0001.  and  under  the 

Value  of  800,0001. 
of  the  Value  of  800,0001.  and  under  the 

Value  of  900,0001. 


503 

Duty 

L. 

i. 

d. 

1,125 

0 

0 

1,350 

0 

0 

1,575 

0 

0' 

1,800 

0 

0 

2,025 

0 

0 

2,250 

0 

0 

2,700 

0 

0 

3,150 

0 

0 

3,600 

0 

0 

4,050  . 

0 

0 

4,500 

0 

0 

5,625 

0 

0 

6,750 

0 

0 

7,875  ■ 

0 

0 

9,000 

0 

p 

11,250 

0 

0 

13,500 

0 

0 

15,750 

0 

0 

18,000 

0 

0 

504  APPENDIX. 

INVENTORY—  continued.  Duty 


of  the  Value  of  900,0001.  and  under  the           L.  s.  d. 

Value  of  1,000,0001.         -              -  20,250  0  0 

of  the  Value  of  1,000,0001."  and  up- 
wards        ....  22,500  0  0 

Exemption  from  all  Stamp  Duties. 

Probate  of  Will,  Letters  of  Administration, 
Confirmation  of  Testament,  and  Eik  thereto, 
and  Inventory  of  the  ejects  of  any  Common 
Seaman,  Marine,  or  Soldier,  who  shall  be 
slain  or  die  in  the  Service  of  His  Majesty, 
His  Heirs  or  Successors : 
Additional  Inventory  to  be  exhibited  and  re- 
corded in  any  Commissary  Court  in  Scot- 
land; where  the  same  shall  not  be  liable  to  a 
Duty  of  greater  Amount  than  the  Duty  al- 
ready paid  upon  any  former  Inventory  exhi- 
bited and  recorded  of  the  Estate  and  Effects 
of  the  same  Person. 

[505]  LEGACIES  and  SUCCESSIONS  to  Personal 
or  Moveable  Estate  upon  Intestacy. 

1.  Where  the  Testator,  Testatrix,  or  Intestate 
died  before  or  upon  the  5th  Day  of  April 
1805. 

For  every  Legacy,  specific  or  pecuniary,  or 
of  any  other  Description,  of  the  Amount  or 
Value  of  201.  or-  upwards,  given  by  any 
Will  or  Testamentary  Instrument  of  any 
Person  who  died  before  or  upon  the  5th 
Day  of  April  1805,  out  of  his  or  her  Per- 
sonal or  Moveable  Estate,  and  which  shall 
be  paid,  delivered,  retained,  satisfied  or  dis- 
charged, after  the  31st  Day  of  August 
1815: 

Also  for  the  clear  Residue  (when  devolving  to 
one  Person)  and  for  every  Share  of  the  clear 
Residue  (when  devolving  to  Two  or  more 


• 


APPENDIX.  505 

LEGACIES  and  SUCCESSION^— continued.  Duty. 


Persons.)  of  the  Personal  or  Moveable  Estate     L.      s.     d, 
of  any  Person,  who  died  before  or  upon  the 
5th  Day  of  April    1805    (after  deducting 
Debts,  Funeral   Expences,  Legacies,   and 
other  Charges  first  payable  thereout),  whe- 
ther the  Title   to  such    Residue,  or  any 
Share  thereof,  shall  accrue  by  virtue  of  any 
Testamentary  Disposition,  or  upon  a  partial 
or  total  Intestacy;  where  such  Residue,  or 
Share  of  Residue,  shall  be  of   the  Amount 
or  Value  of  201.  or  upwards,  and  where  the 
same  shall  be  paid,  delivered,  retained,  satis- 
fied or  discharged,  after  the  Thirty-first  Day 
cf  August  1815  : 
Where  any  such  Legacy,  or  Residue,  or  Share 
of  such  Residue,  shall  have  been  given,  or 
[506]     have  devolved,  to  or  for  the  Benefit  of  a 
Brother  or  Sister  of  the  Deceased,  or  any 
Descendant  of  a  Brother  or  Sister  of  the 
Deceased  ;    a  Duty  at  and  after  the  Rate  of 
Two  Pounds  and  Ten  Shillings  per  Centum,         per  Cent. 
on  the  Amount  or  Value  thereof  -  2     10     0 

Where  any  such  Legacy,  or  Residue,  or  Share 
of  such  Residue,  shall  have  been  given,  or 
have  devolved,  to  or  for  the  Benefit  of  a 
Brother  or  Sister  of  the  Father  or  Mother  of 
the  Deceased,  or  any  Descendant  of  a  Bro- 
ther or  Sister  of  the  Father  or  Mother  of  the 
Deceased  ;  a  Duty  at  and  after  the  Rate  of 
Four  Pounds  per  Centum  on  the  Amount  or  per  Cent. 
Value  thereof  -  -  -  -  4     0     0 

Where  any  such  Legacy,  or  Residue,  or  Share 
of  such  Residue,  shall  have  been  given,  or 
have  devolved,  to  or  for  the  Benefit  of  a 
Brother  or  Sister  of  a  Grandfather  or 
Grandmother  of  the  deceased,  or  any  De- 
scendant of  a  Brother  or  Sister  of  a  Grand- 
father or  Grandmother  of  the  Deceased  ;  a 
44 


50G  APPENDIX. 

LEGACIES  and  SUCCESSIONS— continued.  Duty. 


Duty  at  and  after  the  Rate  of  Five  pounds  L.  s.  d. 
per  Centum  on  the  Amount  or  Value  there-  per  Cent. 
of  -  -  -  -  5     0     0 

And  where  any  such  Legacy,  or  Residue  or 
Share  of  such  Residue,  shall  have  been  given, 
or  have  devolved,  to  or  for  the  "Benefit  of  any 
Person  in  any  other  Degree  of  Collateral 
Consanguinity  to  the  deceased  than  is  above 
described,  or  to  or  for  the  Benefit  of  any 
Stranger  in  blood  to  the  Deceased  ;  a  Duty 
at  and  after  the  Rate  of  Eight  Pounds  per  per  Cent. 
Centum  on  the  Amount  or  Value  thereof  -  8     0     0 

[507]         II.   Where  the  Testator,  Testatrix,  or  Intes- 
tate shall  have  died  after  the  5th   Day    of 

April  1805. 

For  every  Legacy,  specific  or  pecuniary,  or  of 
any  other  Description,  of  the  Amount  or 
Value  of  201.  or  upwards  given  by  any  Will 
or  Testamentary  Instrument,  of  any  Person, 
who  shall  have  died  after  the  5th  Day  of 
April  1805,  either  out  of  his  or  her  Personal 
or  Moveable  Estate,  or  out  of  or  charged 
upon  his  or  her  Real  or  Heritable  Estate,  or 
out  of  any  Moneys  to  arise  by  the  Sale,  Mort- 
gage or  other  Disposition  of  his  or  her  Real 
or  Heritable  Estate,  or  any  Part  thereof,  and 
which  shall  be  paid,  delivered,  retained,  sa- 
tisfied or  discharged  after  the  .list  Day  of 
August  1815  : 

Also,  for  the  clear  Residue  (when  devolving  to 
One  Person)  and  for  every  Share  of  the  clear 
Residue  (when  devolving  to  Two  or  more 
Persons)  of  the  Personal  or  moveable  Estate, 
of  any  person,  who  shall  have  died  after  the 
5th  Day  of  April  1805,  (after  deducting 
Debts,  funeral  expences,  Legacies  and  other 


APPENDIX.  507 

LEGACIES  and  SUCCESSIONS— continued.  Duty. 


Charges  first  payable  thereout),  whether  the  L.  s.  d. 
Title  to  such  Residue,  or  any  share  thereof, 
shall  accrue  by  virtue  of  any  Testamentary 
Disposition,  or  upon  a  partial  or  total  In- 
testacy; where  such  Residue,  or  Share  of 
Residue,  shall  be  of  the  Amount  or  Value 
[508]  of  20l.  or  upwards,  and  where  the  same 
shall  be  paid,  delivered,  retained,  satisfied 
or  discharged  after  the  31st  Day  of  August 
1815: 

And  also  for  the  clear  Residue  (when  given  to 
one  Person)  and  for  every  Share  of  the  clear 
Residue  (when  given  to  Two  or  more  Per- 
sons) of  the  Moneys  to  arise  from  the  Sale, 
Mortgage  or  other  Disposition  of  any  Real 
or  Heritable  Estate,  directed  to  be  sold, 
mortgaged,  or  otherwise  disposed  of,  by  any 
Will  or  Testamentary  Instrument,  of  any 
Person,  who  shall  have  died  after  the  5th 
Day  of  April  1805  (after  deducting  Debts, 
EuneYal  Expences,  Legacies  and  other 
Charges  first  made  payable,  thereout,  if  any) 
where  such  Residue,  or  Share  of  Residue, 
shall  amount  to  201.  or  upwards,  and  where 
the  same  shall  be  paid,  retained  or  dis- 
charged after  the  21st  Day  of  August  1815  : 

Where  any  such  Legacy  or  residue,  or  any 
Share  of  such  Residue, shall  have  been  given, 
or  have  devolved,  to  or  for  the  Benefit  of  a 
Child  of  the  Deceased,  or  any  Descendant  of 
.  a  child  of  tjie  Deceased,  or  to  or  for  the  Be- 
nefit of  the  Father  or  Mother,  or  any  lineal 
Ancestor  of  the  Deceased  ;  a  Duty  at  and  af- 
ter the  Rate  of  One  Pound  per  Centum  on  per  Cent. 
the  Amount  or  Value  thereof  -  -  10     0 

Where  any  such  Legacy,  or  Residue,  or  any 
Share  of  such  Residue,  shall  have  been  given, 
or  have  devolved,  to  or  for  the  Benefit  of  a 


509  APPENDIX. 

LEGACIES  and  SUCCESSIONS— continued.  Dun 


[509]  Brother   or   Sister  of  the  Deceased,  or  any       L.     s.     d. 
Descendant  of  a  Brother  or  Sister  of  the  De- 
ceased ;    a   Duty  at    and   after   the    Rate   of 
Three  Pounds   per  Centum  on   the   Amount         per  Cent. 
or  Value  thereof        -  -  -  -  3     0     0 

Where  any  such  Legacy,  or  Residue,  or  any 
Share  of  such  Residue,  shall  have  been  given, 
or  have  devolved,  to  or  for  the  Benefit  of  a 
Brother  or  Sister  of  the  Father  or  Mother  of 
the  Deceased,  or  any  Descendant  of  a  Bro- 
ther or  Sister  of  the  Father  or  Mother  of  the 
Deceased;  a  Duty  at  and  after  the  rate  of 
Five  Pounds  per  Centum  on  the  amount  or  per  Cent. 
Value  thereof  -  -  -  -.500 

Where  any  such  Legacy,  or  Residue,  or  any 
Share  of  such  Residue,  shall  have  been  given, 
or  have  devolved,  to  or  for  the  Benefit  of  a 
Brother  or  Sister  of  a  Grandfather  or  Grand- 
mother of  the  Deceased,  or  any  Descendant 
of  a  Brother  or  Sister  of  a  Grandfather  or 
Grandmother  of  the  Deceased  ;  a  Duty  at 
and  after  the  Rate  of  Six  Pounds  per  Cen-  per  Cent, 
turn  on  the  Amount  or  Value  thereof  -  6     0     0 

And  where  any  such  Legacy,  or  Residue,  or 
any  Share  of  such  Residue,  shall  have  been 
given,  or  have  devolved,  to  or  for  the  Bene- 
fit of  any  Person,  in  any  other  Degree  of  col- 
lateral Consanguinity  to  the  Deceased  than 
is  above  described,  or  to  or  for  the  Benefit 
of  any  Stranger  in  blood  to  the  Deceased  ;  a 
Duty  at  and  after  the  Rate  of  Ten  Pounds  per  Cent. 
per  Centum  on  the  Amount  or  Value  thereof  10     0     0 

[5lo]  And  all  gifts  of  Annuities,  or  by  way  of  An- 
nuity, or  of  any  other  partial  Benefit  or  In- 
terest, out  of  any  such  Estate  or  Effects  as 
aforesaid,  shall  be  deemed  Legacies  within 
the  Intent  and  Meaning  of  this  Schedule. 

And    where   any    Legatee  shall    take   Two    or 


Al'PENDlX.  510 

LEGACIES  and  SUCCESSIONS— continued.  Duty. 


more  distinct  Legacies  or  Benefits  under  any       L.     s.     d. 

Will    or    Testamentary    Instrument,    which 

shall  together  he  of  the  Amount  or  Value  of 

20/.  each  shall  be  charged  with  Duty,  though 

each  or  either  may  be  separately  under  that 

Amount  of  Value. 

Exemptions. 

Legacies,  and  Residues,  or  Shares  of  Residue, 
of  any  such  Estate  or  Effects  as  aforesaid, 
given  or  devolving  to  or  for  the  Benefit  of  the 
Husband  or  Wife  of  the  Deceased,  or  to  or 
for  the  Benefit  of  any  of  the  Royal  Family. 

And  all  Legacies  which  were  exempted  from 
Duty  by  the  Act  passed  in  the  39th  Year  of 
His  Majesty's  Reign,  c.  73,  for  exempting 
certain  specific  Legacies  given  to  Bodies 
Corporate,  or  other  Public  Bodies,  from  the 
Payment  of  Duty. 


By  Sect.  2.  It  is  enacted,  That  there  shall  be  raised,  levied,  and 
paid  unto  and  for  the  Use  of  his  Majesty,  His  Heirs  and  Succes- 
sors, in  and  throughout  the  Whole  of  Great  Britain,  for  and  in  re- 
spect of  the  several  instruments,  Matters,  and  Things,  mentioned 
[5  1  l]  and  described  in  the  schedule  hereunto  annexed  (except  those 
standing  under  the  Head  of  Exemptions)  or  for  or  in  respect  of  the 
Vellum,  Parchment,  or  Paper,  upon  which  such  Instruments,  Mat- 
ters and  Things,  or  any  of  them  shall  be  written  or  printed,  the 
several  Duties  or  Sums  of  Money  set  down  in  Figures  against  the 
same  respectively,  or  otherwise  specified  and  set  forth  in  the  same 
Schedule  ;  and  that  the  yearly  Per-ccntage  Duty  on  Insurances 
from  Loss  by  Fire,  therein  mentioned,  shall  commence  and  take 
place  from  and  after  the  Twenty-eighth  Day  of  September,  One 
thousand  eight  hundred  and  fifteen  ;  and  that  all  the  other  Duties 
therein  mentioned  shall  commence  and  take  place  from  and  after 
the  Thirty-first  day  of  August,  One  thousand  eight  hundred  and 
fifteen  ;  and  that  the  said  Schedule  and  all  the  Provisions,  Rcgula- 


511  APPENDIX. 

tions,  and  Directions  therein  contained  with  respect  to  the  said 
Duties,  and  the  Instruments,  Matters,  and  Things  charged  there- 
with, shall  he  deemed  and  taken  to  be  Part  of  this  Act,  and  shall 
be  read  and  construed  as  if  the  same  had  been  inserted  herein  at 
this  Place,  and  shall  be  applied,  observed,  and  put  into  Execution 
accordingly. 

By  Sect.  37.  It  is  enacted,  That  from  and  after  the  thirty-first 
Day  of  August  One  thousand  eight  hundred  and  fifteen,  if  any  Per- 
son shall  take  possession  of,  and  in  any  Manner  administer,  any 
Part  of  the  Personal  Estate  and  Effects  of  any  Person  deceased, 
without  obtaining  Probate  of  the  Will  or  Letters  of  Administration 
of  the  Estate  and  Effects  of  the  Deceased,  within  Six  Calendar 
Months  after  his  or  her  decease,  or  within  Two  Calendar  Months 
after  the  Termination  of  any  Suit  or  Dispute  respecting  the  Will 
or  the  Right  to  Letters  of  Administration,  if  there  shall  be  any 
such  which  shall  not  be  ended  within  Four  Calendar  Months  after 
the  Death  of  the  Deceased  ;  every  Person  so  offending  shall  for- 
feit the  Sum  of  One  Hundred  Pounds,  and  also  a  further  Sum,  at 
and  after  the  Rate  of  Ten  Pounds  Jier  Centum  on  the  Amount  of 
the  Stamp  Duty  payable  on  the  Probate  of  the  Will  or  Letters  of 
Administration  of  the  Estate  and- Effects  of  the  Deceased. 

[512]  Sect.  38.  That  from  and  after  the  Expiration  of  three  Ca- 
lendar months  from  the  passing  of  this  Act,  no  ecclesiastical  Court 
or  Person  shall  grant  Probate  of  the  Will  or  Letters  of  Administra- 
tion of  the  Estate  and  Effects  of  any  Person  deceased,  without  first 
requiring  and  receiving  from  the  person  or  persons  applying  for  the 
Probate  or  Letters  of  Administration,  or  from  some  other  competent 
person  or  Persons,  an  affidavit,  or  solemn  affirmation  in  the  case  of 
Quakers,  that  the  Estate  and  Effects  of  the  Deceased,  for  or  in  re- 
spect of  which  the  Probate  or  Letters  of  Administration  is  or  are  to 
be  granted,  exclusive  of  what  the  deceased  shall  have  been  possess- 
ed of  or  entitled  to  as  a  trustee  for  any  other  person  or  persons,  and 
not  beneficially,  but  including  the  Leasehold  estates  for  years  of  the 
deceased,  whether  absolute  or  determinable  on  Lives,  if  any,  and 
without  deducting  any  thing  on  account  of  the  debts  due  and  ow- 
ing from  the  deceased,  are  under  the  value  of  a  certain  sum  to  be 
therein  specified  to  the  best  of  the  Deponents  or  Affirmants  know- 
ledge, information,   and  belief,   in    order  that  the  proper  and  full 
Stamp  Duty  may  be  paid  on  such  Probate  or  letters  of  administra- 
tion ;  which  affidavit  or  affirmation  shall  be  made  before  the  Surro- 


APPENDIX.  512 

gate  or  other  Person  who  shall  administer  the  usual  oath  for  the 
due  Administration  of  the  Estate  and  Effects  of  the  Deceased. 

Sect.  39.  That  every  such  affidavit  or  affirmation,  shall  he  exempt 
from'  Stamp   Duty  and  shall  be  transmitted  to  the  said  Commis- 
sioners of  Stamps,  together  with  the  copy  of  the  Will,  or  extract 
or  account  of  the  letters  of  administration  to  which  it  shall  relate, 
by  the  Registrar  or  other  Officer  of  the  Court,  whose  Duty  it  shall 
be  to  transmit  Copies  of  Wills,  and  Extracts  or  Accounts  of  Let- 
ters of  Administration,  to  the  said  Commissioners,  for  the  better 
Collection  of  the  Duties  on  Legacies  and  Successions  to  Personal 
Estate  upon  Intestacy;  and  if  any  Registrar  or  other  Officer  whose 
Duty  it  shall  be,  shall  neglect  to  transmit  such  Affidavit  or  Affir- 
mation to  the  said  Commissioners  of  Stamps,  as  hereby  directed, 
every  Person  so  offending  shall  forfeit  the  Sum  of  Fifty  Pounds. 
[513]  Sect.  40.  That  from  and  after  the  passing  of  this  Act, 
where  any  Person,  on  applying  for  the  Probate  of  a  Will  or  Let- 
ters of  Administration,  shall  have  estimated  the  Estate  and  Effects 
of  the  Deceased  to  be  of  greater  Value  than  the  same  shall  have 
afterwards  proved  to  be,  and  shall  in  consequence  have  paid  too 
high  a  Stamp  Duty  thereon,  if  such  Person  shall  produce  the 
Probate  or  Letters  of  Administration  to  the  said  Commissioners 
of  Stamps,  within  Six  Calendar  Months  after  the  true  Value  of  the 
Estate  and  Effects  shall  have  been  ascertained,  and  it  shall  be  dis- 
covered that  too  high  a  Duty  was  first  paid  on  the  Probate  or  Let- 
ters of  Administration,  and  shall  deliver  to  them  a  particular  In- 
ventory and  Account  and  Valuation  of  the  Estate  and  Effects  of 
the  Deceased,  verified  by  an  Affidavit,  cr  solemn  Affirmation  in 
the  Case  of  Quakers;  and  if  it  should  thereupon  satisfactorily  ap- 
pear to  the  said  Commissioners,  that  a  greater  Stamp  Duty  was 
paid  on  the  Probate  or  Letters  of  Administration  than  the  Law  re- 
quired, it  shall  be  lawful  for  the  said  Commissioners  to  cancel  and 
expunge  the  Stamp  on  the  Probate  or  Letters  of  Administration, 
and  to   substitute  another   Stamp   for  denoting   the  Duty  which 
ought  to  have  been  paid  thereon,  and  to  make  an  allowance  for 
the  difference  between  them,  as  in  the  cases  of  spoiled  stamps,  or, 
if  the  difference  be  considerable,  to  repay  the  same  in  money,  at 
the  discretion  of  the  said  Commissioners. 

Sect.  41.   That  from  and   after  the  passing  of  this   Act,  where 
any  Person,  on  applying  for  the  Probate  of  a  Will  or  Letters  of 


513  APPENDIX. 

Administration,  shall  have  estimated  the  Estate  and  Effects  of  the 
Deceased  to  he  of  less  value  than  the  same  shall  have  afterwards 
proved  to  he,  and  shall  in  consequence  have  paid  too  little  Stamp 
Duty  thereon,  it  shall  be  lawful  for  the  said  Commissioners  of 
Stamps,  on  delivery  to  them  of  an  affidavit  or  solemn  affirmation 
of  the  Value  of  the  Estate  and  Effects  of  the  deceased,  to  cause 
the  Probate  or  Letters  of  Administration  to  be  duly  stamped,  on 
Payment  of  the  full  Duty  which  ought  to  have  been  originally  paid 
[514]  thereon  in  respect  of  such  Value,  and  of  the  further  Sum  or 
Penalty  payable  by  Law  for  stamping  Deeds  after  the  Execution 
thereof,  without  any  Deduction  or  allowance  of  the  Stamp  Duty 
originally  paid  on  such  Probate  or  Letters  of  Administration  :  Pro- 
vided always,  that  if  the  application  shall  be  made  within  Six 
Calendar  Months  after  the  true  Value  of  the  Estate  and  Effects 
shall  be  ascertained,  and  it  shall  be  discovered  that  too  little  Duty 
was  at  first  paid  on  the  Probate  or  Letters  of  Administration;  and 
if  it  shall  appear  by  affidavit  or  solemn  affirmation,  to  the  satisfac- 
tion of  the  said  Commissioners,  that  such  Duty  was  paid  in  con- 
sequence of  any  mistake  or  misapprehension,  or  of  its  not  being 
known  at  the  time  that  some  particular  part  of  the  Estate  and 
Effects  belonged  to  the  deceased,  and  without  any  intention  of 
Fraud,  or  to  delay  the  Payment  of  the  full  and  proper  Duty,  then 
it  shall  be  lawful  for  the  said  Commissioners  to  remit  the  before- 
mentioned  penalty,  and  to  cause  the  Probate  or  Letters  of  Admi- 
nistration to  be  duly  stamped,  on  payment  only  of  the  sum  which 
shall  be  wanting  to  make  up  the  Duty  which  ought  to  have  been 
at  first  paid  thereon. 

Sect.  42.  That  in  cases  of  letters  of  Administration  on  which 
too  little  Stamp  Duty  shall  have  been  paid  at  first,  the  said  Com- 
missioners of  Stamps  shall  not  cause  the  same  to  be  duly  stamped 
in  the  manner  aforesaid,  until  the  Administrator  shall  have  given 
such  security  to  the  Ecclesiastical  Court  or  Ordinary  by  whom  the 
Letters  of  Administration  shall  have  been  granted,  as  ought  by  law 
to  have  been  given  on  the  granting  thereof,  in  case  the  full  value 
of  the  Estate  and  Effects  of  the  Deceased  had  been  then  ascer- 
tained, and  also  that  the  said  Commissioners  of  Stamps  shall 
yearly,  or  oftener,  transmit  an  account  of  the  Probates  and  letters 
of  Administration,  upon  which  the  Stamps  shall  have  been  recti- 
fied in  pursuance  of  this  Act,  to  the  several  Ecclesiastical  Courts 


APPENDIX*  511 

by  which  the  same  shall  have  been  granted,  together  with  the  va- 
lue of  the  Estate  and  Effects  of  the  Deceased,  upon  which  such 
rectification  shall  have  proceeded. 

[515]  Sect.  43.  That  where  too  little  duty  shall  have  been  paid 
on  any  Probate  or  Letters  of  Administration,  in  consequence  of 
any  mistake  or  misapprehension,  or  of  its  not  being  known  at  the 
time  that  some  particular  part  of  the  Estate  and  Effects  belonged 
to  the  Deceased,  if  any  Executor  or  Administrator  acting  under 
such  Probate  or  Letters  of  Administration  shall  not,  within  six 
Calendar  months  after  the  passing  of  this  Act,  or  after  the  disco- 
very of  the  mistake  or  misapprehension,  or  of  any  Estate  or  Effects 
not  known  at  the  time  to  have  belonged  to  the  Deceased,  apply  to 
the  said  Commissioners  of  Stamps,  and  pay  what  shall  be  wanting 
to  make  up  the  Duty  which  ought  to  have  been  paid  at  first  on 
such  Probate  or  Letters  of  Administration,  he  or  she  shali  forfeit 
the  sum  of  one  hundred  pounds,  and  also  a  further  sum,  at  and 
after  the  rate  of  ten  pounds  per  centum  on  the  amount  of  the  sum 
wanting  to  make  up  the  proper  duty. 

Sect.  44.  That  from  and  after  the  Expiration  of  Three  Calendar 
months  from  the  passing  of  this  Act,  it  shall  not  be  lawful  for  any- 
Ecclesiastical  Court  or  Person  to  call  in  and  revoke,  or  to  accept 
the  surrender  of  any  Probate  or  Letters  of  Administration,  on  the 
ground  only  of  too  high  or  too  low  a  Stamp  Duty  haying  been  paid 
thereon,  as  heretofore  hath  been  practised  ;  and  if  any  Ecclesiasti- 
cal Court  or  Person  shall  so  do,  the  Commissioners  of  Stamps 
shall  not  make  any  allowance  whatever  for  the  Stamp  Duty  on  the 
Probate  or  Letters  of  Administration  which  shall  be  so  annulled. 

Sect.  45.  As  it  has  happened  in  the  case  of  Letters  of  Adminis- 
tration on  which  the  proper  Stamp  Duty  bath  not  been  paid  at 
first,  that  certain  debts,  chattels  real  or  other  Effects,  due  or  belong- 
ing to  the  Deceased,  have  been  found  to  be  of  such  great  value, 
that  the  Administrator  hath  not  been  possessed  of  money  suffi-, 
cicnt  either  of  his  own  or  of  the  Deceased  to  pay  the  requisite, 
Stamp  Duty,  in  order  to  render  such  Letters  of  Administration, 
available  for  the  recovery  thereof  by  law:  And  whereas  the  like 
[516]  may  occur  again,  and  it  may  also  happen  that  Executors  or 
Persons  entitled  to  take  out  Letters  of  Administration  may,  before 
obtaining  Probate  of  the  Will  or  Letters  of  Administration  of  the 
Estate  and  Effects  of  the  Deceased,  find  some  considerable  part  or 
parts  of  the  Estate  and  Effects  of  the  Deceased  so  circumstanced 

45 


516  APPENDIX. 

as  not  to  be  immediately  got  possession  of,  and  may  not  have  mo- 
ney sufficient  either  of  their  own  or  of  the  deceased  to  pay  the 
stamp  duty  on  the  probate  or  letters  of  administration  which  it 
shall  be  necessary  to  obtain  ;  it  is  enacted,  That  from  and  after 
the  passing  of  this  act,  it  shall  be  lawful  for  the  said  Commission- 
ers of  stamps,  on  satisfactory  proof  of  the  facts  by  affidavit  or  so- 
lemn affirmation,  in  any  such  case  as  aforesaid  which  may  appear 
to  them  to  require  relief,  to  cause  the  probate  or  letters  of  admini- 
stration to  be  duly  stamped,  for  denoting  the  duty  payable,  or 
which  ought  originally  to  have  been  paid  thereon,  and  to  give 
credit  for  the  duty,  either  upon  payment  of  the  before-mentioned 
penalty,  or  without,  in  cases  of  probates  or  letters  of  administra- 
tion already  obtained,  and  upon  which  too  little  duty  shall  have 
been  paid,  and  either  with  or  without  allowance  of  the  stamp  duty 
already  paid  thereon,  as  the  case  may  require,  under  the  provi- 
sions of  this  act ;  provided  in  all  such  cases  of  credit  that  security 
be  first  given  by  the  executors  or  administrators,  together  with 
two  or  more  sufficient  sureties  to  be  approved  of  by  the  said 
Commissioners,  by  a  bond  to  His  Majesty,  his  heirs  or  successors, 
in  double  the  amount  of  the  duty,  for  the  due  and  full  payment  of 
the  sum  for  which  credit  shall  be  given,  within  six  calendar 
months,  or  any  less  period,  and  of  the  interest  for  the  same,  at  the 
rate  of  ten  pounds  fier  centum  per  annu?n,  from  the  expiration  of 
such  period  until  payment  thereof,  in  case  of  any  default  of  pay- 
ment at  the  time  appointed  ;  and  such  probate  or  letters  of  admi- 
nistration being  duly  stamped  in  the  maimer  aforesaid,  shall  be  as 
valid  and  available  as  if  the  proper  duty  had  been  at  first  paid 
thereon,  and  the  same  had  been  stamped  accordingly. 

Sect.  46.  Provided,  That  if  at  the  expiration  of  the  time  to  be 
allowed  for  the  payment  of  the  duty  on  such  probate  or  letters  of 
[5  17]  administration,  it  shall  appear  to  the  satisfaction  of  the  said 
Commissioners,  that  the  executor  or  administrator  to  whom  such 
credit  shall  be  given  as  aforesaid,  shall  not  .have  recovered  effects 
of  the  deceased  to  an  amount  sufficient  for  the  payment  of  the 
duty,  it  shall  be  lawful  for  the  said  commissioners  to  give  such 
further  time  for  the  payment  thereof,  and  upon  such  terms  and 
conditions  as  they  shall  think  expedient. 

Sect.  47.  Provided  also,  That  the  probate  or  letters  of  adminis- 
tration so  to  be  stamped  on  credit  as  aforesaid,  shall  be  deposited 
with  the  said  Commissioners  of  stamps,  and  shall  not  be  delivered 
up  to  the  executor  or  administrator  until  payment  of  the  duty,  to- 


APPENDIX.  517 

gether  \yith  such  interest  as  aforesaid,  if  any  shall  become  due  ; 
but  the  same  shall  nevertheless  be  produced  in  evidence  by  some 
officer  of  the  Commissioners  of  stamps,  at  .the  expense  of  the  exe- 
cutor or  administrator,  as  occasion  shall  require. 

Sect.  48.  That  the  duty  for  which  credit  shall  be  given  as  afore- 
said, shall  be  a  debt  to  His  Majesty,  his  heirs  or  successors,  from 
the  personal  estate  of  the  deceased,  and  shall  be  paid  in  preference 
to,  and  before  any  other  debt  whatsoever  due  from  the  same  estate  ; 
and  if  any  executor  or  administrator  of  the  estate  of  the  deceased 
shall  pay  any  other  debt  in  preference  thereto,  he  or  she  shall  not 
only  be  charged  with  and  be  liable  to  pay  the  duty  out  of  his  or  her 
own  estate,  but  shall  also  forfeit  the  sum  of  five  hundred  pounds. 

Sect.  49.  That  if  before  payment  of  the  duty  for  which  credit 
shall  be  given  in  any  such  case  as  aforesaid,  it  shall  become  neces- 
sary to  take  out  letters  of  administration  de  bonis  non  of  the  de- 
ceased, it  shall  also  be  lawful  for  the  said  commissioners  to  cause 
such  letters  of  administration  de  bonis  non,  to  be  duly  stamped 
with  the  particular  stamp  provided  to  be  used  on  letters  of  admi- 
nistration of  that  kind,  for  denoting  the  payment  of  the  duty  in  re- 
spect of  the  effects  of  the  deceased,  on  some  prior  probate  or  letters 
of  administration  of  the  same  effects,  in  such  and  the  same  manner 
[518]  as  if  the  duty  had  been  actually  paid,  upon  having  letters  of 
administration  de  bonis  non  deposited  with  the  said  Commission- 
ers, and  upon  having  such  further  security  for  the  payment  of  the 
duty,  as  they  shall  think  expedient;  and  such  letters  of  administra- 
tion shall  be  as  valid  and  available  as  if  the  duty  for  which  credit 
shall  be  given  had  been  paid. 

Sect.  50.  In  regard  to  probate  of  wills  and  letters  of  admini- 
stration, That  where  any  part  of  the  personal  estate  which  the  de- 
ceased was  possessed  of  or  entitled  to,  shall  be  alleged  to  have  been 
trust  property,  if  the  person  or  persons  who  shall  be  required  to 
make  any  affidavit  or  affirmation  relating  thereto,  conformably  to 
the  provisions  of  the  said  act  of  the  forty-eighth  year  of  His  Ma- 
jesty's reign,  shall  reside  out  of  England,  such  affidavit  or  affirma- 
tion shall  and  may  be  made  before  any  person  duly  commissioned 
to  take  affidavits  by  the  Court  of  Sessions  or  Court  of  Exchequer  in 
Scotland,  or  before  one  of  His  Majesty's  Justices  of  the  peace  in 
Scotland,  or  before  a  Master  in  Chancery  Ordinary  or  Extraordina- 
ry in  Ireland,  or  before  any  Judge  or  civil  magistrate  of  any  other 
country  or  place  where  the  party  or  parties  shall  happen  to  reside; 


518  APPENDIX. 

and  every  such  affidavit  or  affirmation  shall  be  as  effectual  as  if  the 
same  had  been  made  before  a  Master  in  Chancery  in  England, 
pursuant  to  the  directions  of  the  said  last-mentioned  act. 

Sect.  51.  Provided,  That  where  it  shall  be  proved  by  oath  or 
proper  vouchers  to  the  satisfaction  of  the  said  Commissioners  of 
stamps,  that  an  executor  or  administrator  hath  paid  debts  due 
and  owing  from  the  deceased,  and  payable  by  law  out  of  his  or  her 
personal  or  moveable  estate,  to  such  an  amount  as  being  deducted 
from  the  amount  or  value  of  the  estate  and  effects  of  the  deceas- 
ed, for  or  in  respect  of  which  a  probate  or  letters  of  administra- 
tion, or  a  compensation  of  a  testament,  testamentary  or  dative, 
shall  have  been  granted  after  the  thirty-first  day  of  August  one 
thousand  eight  hundred  and  fifteen,  or  which  shall  be  included  in 
any  inventory  exhibited  and  recorded  in  a  Commissary  Court  in 
Scotland  as  the  law  requires,  after  that  day,  shall  reduce  the  same 
to  a  sum  which,  if  it  had  been  the  whole  gross  amount  or  value 
[519]  of  such  estate  and  effects,  would  have  occasioned  a  less 
stamp  duty  to  be  paid  on  such  probate  or  letters  of  administra- 
tion, or  confirmation  or  inventory,  than  shall  have  been  actually 
paid  thereon  under  and  by  virtue  of  this  act,  it  shall  be  lawful  for 
the  said  Commissioners  to  return  the  difference,  provided  the  same 
'shall  be  claimed  within  three  years  after  the  date  of  such  probate 
or  letters  of  administration  or  confirmation,  or  the  recording  of 
such  confirmation  as  aforesaid  ;  but  where,  by  reason  of  any  pro- 
ceeding at  law  or  in  equity,  the  debts  due  from  the  deceased  shall 
not  have  been  ascertained  and  paid,  or  the  effects  of  the  deceased 
shall  not  have  been  recovered  and  made  available,  and  in  conse- 
quence thereof  the  executor  or  administrator  shall  be  prevented 
from  claiming  such  return  of  duty  as  aforesaid, within  the  said  term 
of  three  years,  it  shall  be  lawful  for  the  Commissioners  of  the  trea- 
sury to  allow  such  further  time  for  making  the  claim,  as  may  ap- 
pear to  them  to  be  reasonable  under  the  circumstances  of  the  case. 
By  Sect.  8.  It  is  enacted,  that  the  powers  and  provisions  of- 
former  acts  shall  be  put  in  execution,  with  regard  to  the  duties 
under  this  act.  It  is  therefore  necessary  to  recur  to  the  Statutes 
36  Geo.  3.,  45  Geo.  3.  and  48  Geo.  3. 

By  the  stat.  36  Geo.  3.  c.  52.  sect.  3.  It  is  enacted,  That  the 
duties  thereby  imposed  shall  be  under  the  management  of  the  Com- 
missioners of  stamps,  who  are  to  prepare  proper  stamps,  denoting 
each  rate,   and  to  do  all  acts  for  carrying  that  act  into  execution. 


APPKNDIX.  519 

Sect.  5.  And  that  all  persons  may  be  able  to  take  receipts  for 
legacies,  and  residue,  or  shares  of  residue,  according  to  that 
Act,  the  Commissioners  are  to  provide  paper  adapted  for  such  re- 
ceipts, and  to  print  thereon  the  form  of  words  in  the  schedule  an- 
nexed to  that  Act,  and  any  person  requiring  them  may  fill  them  up 
with  sums,  names,  and  dates  according  to  the  aforesaid  provisions, 
or  use  the  like  form  on  any  other  paper,  vellum,  or  parchment. 

[520~]  Sect.  6.  That  in  all  cases  wherein  it  isftot  thereby  other- 
wise provided,  the  duties  shall  be  paid  by  an  executor  or  admi- 
nistrator, on  retaining  for  himself  or  for  any  other  person,  or  on 
delivering  or  satisfying  to  any  other  person,  any  legacy  or  residue, 
or  share  of  residue;  and  where  any  executor  or  administrator 
shall  retain,  but  not  have  paid  the  duty,  the  duty  shall  be  a  debt 
to  His  Majesty  from  the  executor  or  administrator;  and  where 
the  legacy  is  paid,  without  paying  or  retaining  the  duty,  the  duty 
shall  be  a  debt  from  the  executor  or  administrator  and  the  lega- 
tee, or  party  in  distribution. 

Sect.  7.  That  any  gift  by  will  to  be  satisfied  out  of  the  personal 
estate  of  any  person  dying  after  that  act,  or  out  of  the  personal 
estate  which  such  person  shall  have  power  to  dispose  of,  shall  be 
deemed  a  legacy  within  that  act,  whether  given  by  way  of  annui- 
ty, or  in  any  other  form,  and  whether  charged  only  on  personal  es- 
tate or  charged  also  on  real  estate,  except  so  far  as  it  shall  be 
paid  out  of  real  estate*,  in  a  due  execution  of  the  will;  and  every 
donatio  ?nortis  causa  shall  bie  deemed  a  legacy  under  that  act. 

Sect.  8.  That  the  value  of  annuities  for  lives,  or  years,  or  other 
times  to  be  calculated,  and  the  duties  thereon,  shall  be  charged 
according  to  table  in  the  schedule  annexed  to  that  act,  and  the 
duty  to  be  paid  by  four  equal  payments,  viz.  on  completing  the 
payment  of,  the  respective  four  first  years,  and  the  value  of  such 
annuity,  if  determinable  on  any  contingency  besides  the  death  of 
any  person,  to  be  calculated  without  regard  to  such  contingency. 
But  if  such  annuity  determine  by  death  before  the  four  years  pay- 
ment be  clue,  then  the  duty  shall  be  payable  only  in  proportion  to 
so  many  of  the  payments  as  became  due;  and  where  the  annuity 
shall  determine  on  any  other  contingency,  not  only  all  future  pay- 
ments of  the  duty  shall  cease,  but  the  person  who  shall  have  pre- 
viously paid  any  such  duty  may  obtain  a  return  of  so  much   as  to 

*   But  now  ^see  stat.   15  Geo.  3.  c.  28.  above  referred  to. 


021  APPENDIX. 

reduce  it  to  so  much  as  would  be  payable  for  the  annuity  calcula- 
ted according  to  the  term  for  which  it  should  have  endured,  and 
that  such  abatement  shall  be  settled  by  the  Commissioners  accord- 
ing to  the  tables  in  the  schedule. 

Sect.  9.  That  the  value  of  annuities  payable  out  of  a  legacy  shall 
be  calculated,  and  the  duty  charged  thereon  in  the  same  manner  as 
directed  with  regard  to  general  annuities,  and  the  duty  on  such 
legacy  (if  any  duty  shall  be  payable  thereon)  shall  be  calculated  on 
the  value  of  the  legacy,  after  deducting  the  value  of  the  annuity; 
and  the  duty  for  the  atinuity  shall  be  paid  by  the  person  entitled 
to  the  legacy,  subject  to  the  like  proviso  as  the  duty  on  general 
annuities,  and  shall  be  deducted  out  of  the  annuities  for  the  first 
four  years,  or  so  long  as  the  said  annuities  shall  be  paid. 

Sect.  10.  That  the  duty  on  a  legacy  given  for  purchasing  an  an- 
nuity of  a  certain  amount  shall  be  calculated  on  the  sum  necessary 
to  purchase  such  annuity  according  to  the  aforesaid  tables,  and 
shall  be  deducted  from  such  sum,  and  paid  as  on  pecuniary  lega- 
cies, and  the  annuity  to  be  purchased  shall  be  reduced  in  propor- 
tion to  the  duty  payable  thereon. 

Sect.  1 1.  That  if  any  benefit  shall  be  given  in  such  terms  that 
the  amount  or  value  can  only  be  ascertained  from  time  to  time  by 
the  actual  application  of  the  fund ;  or  if  the  amount  or  value  of 
such  benefit  cannot,  by  reason  of  the  form  or  manner  of  the  gift, 
be  so  ascertained  that  the  duty  can  be  charged  thereon  under  any 
of  the  aforesaid  directions,  then  such  duty  shall  be  charged  on  the 
sums  or  effects  which  shall  be  applied  from  time  to  time  for  such 
respective  purposes,  as  separate  and  distinct  legacies  or  bequests, 
and  shall  be  paid  out  of  the  fund  applicable  for  such  purposes,  or 
charged  with  answering  the  same. 

Sect.  12.  That  the  duty  on  a  legacy  or  residue  to  be  enjoyed  by 
.different  persons  in  succession,  who  shall  be  chargeable  with  the 
duties  at  the  same  rate,  shall  be  paid  as  in  case  of  a  legacy  to  one 
[522]  person  ;  and  where  a  legacy  given  so  as  to  be  enjoyed  in  suc- 
cession by  different  persons,  some  one  of  whom  shall  not*be  liable 
to  any  duty,  and  others  liable  to  different  duties,  so  that  one  rate  of 
duty  cannot  be  immediately  charged,  all  persons  who  shall  be  enti- 
tled for  life,  or  for  any  temporary  interest,  shall  be  charged  with 
the  duty  in  respect  of  such  bequest  in  the  same  manner  as  if  the 
annual  produce  thereof  had  bee*  given  by  way  of  annuity ;  such 
charges  shall  begin  when  the  parties  begin  to  receive  the  produce. 


APPENDIX.  522 

and  shall  be  paid  by  equal  yearly  payments  for  four  years,  if  they 
so  long1  receive  such  produce  ;  and  all  persons  who  shall  become 
absolutely  entitled  to  such  legacy  so  to  be  enjoyed  in  succession 
shall,  when  they  shall  begin  to  receive  the  profit  thereof,  pay  the 
duty  for  the  same,  or  for  such  part  as  shall  be  so  received,  in  the 
same  manner  as  if  it  had  been  given  immediately. 

Sect.  13.  That  the  duty  on  a  legacy  or  residue  to  be  enjoyed  by 
different  persons  in  succession,  on  whom  the  duty  is  chargeable  at 
the  same  rate,  shall  be  deducted  and  paid  by  the  executor  or  ad- 
ministrator, on  payment  of  the  legacy  or  residue  to  any  trustee  ; 
and  where  the  legacy  or  residue  shall  not  be  paid  to  a  trustee, 
the  duty  shall  be  paid  out  of  the  capital  of  the  property  so  given, 
on  receipt  of  any  part  of  the  produce  by  any  of  the  persons  so  en- 
titled in  succession,  according  to  the  amount  of  the  capital  of  which 
such  produce  shall  be  so  received  ;  and  where  the  duty  shall  be 
chargeable  at  different  rates,  the  executor  or  administrator  shall 
be  chargeable  with  such  duties  in  succession  in  like  manner  as  if 
on  an  immediate  bequest,  unless  where  the  property  shall  have  been 
vested  in  trustees,  in  which  case  the  trustees  shall  be  chargeable 
with  the  duties  as  if  they  were  executors  or  administrators  ;  and 
where  any  partial  interest  shall  be  given,  or  shall  arise  out  of  any 
such  property,  so  to  be  enjoyed  in  succession,  and  such  partial  in- 
terest shall  be  satisfied  by  any  person  enjoying  the  property,  such 
person  shall  be  charged  with  the  duties  payable  for  such  partial 
[523]  interest,  and  shall  pay  and  retain  the  same  as  if  he  were,  ex- 
ecutor, and  shall  be  debtor  to  the  King  for  it  as  if  executor. 

Sect.  14.  That  no  duty  shall  be  paid  on  plate,  furniture,  or  other 
things  not  yielding  any  income,  and  given  to  persons  in  succession, 
lill  the  same  shall  be  actually  sold,  or  shall  come  to  some  person 
having  power  to  sell  the  same,  or  having  an  absolute  interest  there- 
in, and  shall  be  then  charged  on  that  person  only,  and  not  on  the 
executor  by  reason  of  his  having  assented  to  such  bequest. 

Sect.  15.  That  where  different  persons  shall  be  entitled  in  suc- 
cession to  a  legacy,  the  duty  shall  be  charged  thereon  as  given  to 
be  enjoyed  in  succession,  whether  the  parties  entitled  thereto  shall 
lake  the  same  under  a  will  or  under  an  intestacy. 

Sect.  16.  That  where  a  legacy  shall  be  given  in  joint-tenancy  to 
persons,  some  or  one  of  whom  shall  be  chargeable  with  the  duty, 
and   any  others  not  chargeable,  the  person  or  persons  chargeable 


523  APPENDIX. 

shall  afterwards,  by  survivorship  or  severance,  become  entitled 
to  a  larger  interest,  he  shall  pay  the  duty  on  such  increased  inte- 
rest. 

Sect.  17.  That  where  a  legacy  shall  be  given  subject  to  a  con- 
tingency on  which  the  same  may  go  to  another  person,  such  be- 
quest, unless  chargeable  as  an  annuity,  shall  be  charged  with  duty 
as  an  absolute  bequest,  and  such  duty  shall  be  paid  out  of  the  ca- 
pital of  such  legacy,  notwithstanding  the  same  may,  on  such  con- 
tingency, go  to  a  person  not  chargeable  with  the  same  duty,  or 
with  any  duty.  And  if  the  legacy  on  such  contingency  go  to  a 
person  chargeable  with  a  higher  rate  of  duty  than  the  duty  so 
paid,  the  person  becoming  entitled  shall  pay  the  difference. 

Sect.  18.  That  where  a  legacy  shall  be  subjected  to  a  power  of 
appointment  in  favour  of  particular  persons,  such  property  shall  be 
charged  with  duty  as  property  given  in  succession,  and  all  parties 
[524]  shall  be  charged  in  respect. of  their  several  interests,  whether 
previous,  or  subject  to,  or  under,  or  in  default  of  such  appointment. 
And  where  any  property  shall  be  given  for  a  limited  interest,  and 
an  absolute  power  of  appointment  shall  also  be  given  to  any  person, 
who  would  not  be  entitled  in  default  of  appointment,  such  proper- 
ty, on  the  execution  of  such  power,  shall  be  charged  with  the  same 
duty  as  if  the  same  property  had  been  immediately  given  to  the 
person  executing  the  power,  after  allowing  any  duty  before  paid  in 
respect  thereof.  And  where  property  shall  be  given  with  a  general 
power  of  appointment,  which  property,  in  default  of  appointment, 
would  belong  to  the  party  having  the  power;  the  duty  shall  be 
paid  by  that  person  as  if  it  had  been  an  absolute  legacy. 

Sect.  19.  That  money  or  personal  estate  directed  to  be  laid  out 
in  the  purchase  of  real  estate,  shall  pay  duty  as  personal  estate,  un- 
less the  same  shall  be  given  to  be  enjoyed  in  succession,  and  then 
each  person  entitled  thereto  in  succession  shall  pay  duty  for  the- 
same,  as  if  there  had  been  no  direction  for  such  purchase  of  real 
estate,  unless  the  same  were  applied  in  such  purchase  before  such 
duty  accrued;  but  if  before  the  same  shall  be  so  applied  in  the  pur- 
chase of  real  estate,  any  person  shall  become  absolutely  entitled  to 
the  inheritance  thereof  in  possession,  the  same  duty  shall  be  paid 
thereon  as  would  have  been  payable  on  general  personal  estate. 

Sect.  20.  That  estates  pur  auter  vie  applicable  by  law  as  per- 
sonal estate,  shall  be  charged  with  the  duties  as  personal  estate. 


APPENDIX.  524 

Sect.  21.     That  money  given  by  will   to  pay  the  legacy  duty 
shall  not  be  charged  with  the  duty. 

Sect.  22.  That  where  specific  legacies,  and  the  residue  of  per- 
sonal estate  consists  of  property  not  reduced  into  money,  the  ex- 
ecutor or  administrator  may  set  a  value  thereon,  and  offer  the  duty 
thereon  at  the  Stamp  Office,  or  may  require  the  commissioners  to 
appoint  an  appraiser  at  the  expence  of  the  executor  or  adminis- 
trator, and  the  commissioners  may  accept  the  duty  so  offered.  But 
[525]  if  the  commissioners  shall  not  be  satisfied  with  such  offer,  they 
may  appoint  a  person  to  appraise,  and  may  assess  the  duty  on  such 
appraisement,  and  demand  such  duty.  But  the  parties  may  cause 
that  appraisement  to  be  reviewed  by  the  commissioners  of  the 
land  tax  for  the  district  where  the  effects  shall  be,  at  their  next 
meeting,  if  fourteen  days  shall  have  intervened,  and  if  not,  then  at 
their  then  next  meeting,  giving  six  days  notice  to  the  commissioners 
of  stamps ;  and  the  commissioners  of  the  land  tax  may  appoint 
an  appraiser  and  hear  such  appeal,  and  their  determination  shall 
be  final ;  and  if  the -valuation  of  the  commissioners  of  stamps 
shall  not  be  appealed  from  within  the  time  aforesaid,  or  shall  be 
affirmed,  the  duty  shall  be  paid  accordingly;  arid  if  it  shall  be 
varied  on  the  appeal,  the  duty  shall  be  paid  according  to  the 
variation  ;  and  if  the  duty  assessed  as  aforesaid  shall  exceed  the 
duty  first  offered,  the  expence  of  the  appraisement,  and  other 
proceedings  in  assessing  such  duty,  shall  be  paid  by  the  executor 
or  administrator ;  and  if  any  dispute  arise  between  any  person 
entitled  to  any  such  legacy  or  residue,  and  the  executor  or  ad- 
ministrator, with  respect  to  the  value  thereof,  or  the  amount  of 
the  duty  payable  thereon,  the  duty  shall  be  assessed  by  the  com- 
missioners of  the  stamps,  or  the  commissioners  of  land  tax  on 
appeal  as  before  ;  and  where  the  effects  are  ten  miles  from  Lon- 
don, a  person  deputed  by  the  commissioners  of  stamps  shall  act 
for  them,  but  under  their  controul. 

Sect.  23.  That  where  any  legacy  shall  be  satisfied  otherwise 
than  by  payment  of  money,  or  application  of  specific  effects  for 
that  purpose,  or  shall  be  compounded  for  less  than  the  amount,  the 
duty  shall  be  paid  only  on  such  amount,  provided  that  if  any  be- 
quest be  made  in  satisfaction  of  any  other  legacy  or  bequest  unpaid, 
the  duty  shall  not  be  paid  on  both  subjects,  although  both  may  be 
chargeable  with  duty,  but  shall  be  paid  on  the  subject  yielding  the 

largest  duty. 

46 


520  APPENDIX. 

Sect.  24.  That  where  an  executor  or  administrator  shall  offer  to 
pay  or  deliver  a  legacy  or  residue  on  payment  of  the  duty,  and 
it  shall  be  refused,  and  a  release  or  discharge  shall  he" refused,  then, 
although  no  actual  tender  be  made,  if  a  suit  shall  be  afterwards 
instituted,  the  court  may  order  all  costs  to  be  paid  by  the  person 
who  so  refused,  and  also  order  such  person  to  give  a  discharge,  and 
may  deduct  such  costs  with  the  duty  out  of  the  legacy  or  effects  ; 
and  in  case  of  a  suit  for  a  legacy  or  residue,  the  court  may  in  a 
summary  way  order  the  payment  of  the  legacy  or  residue,  and 
the  duty  and  costs. 

Sect.  25.  That  if  any  suit  shall  be  instituted  concerning  the  ad- 
ministration of  the  personal  estate  of  any  testator  or  intestate,  in 
which  any  direction  shall  be  given  for  payment  of  any  legacies 
or  residue,  the  court  shall  in  such  direction  provide  for  the  pay- 
ment of  the  aforesaid  duties;  and  in  all  accounts  of  personal  estate, 
the  court  shall  take  care  that  no  allowance  be  made  for  any  legacy 
or  residue  without  proof  of  payment  of  the  duties  payable  thereon. 
Sect.  26.  That  no  executor  or  administrator  may  pay  or  deliver 
a  legacy,  or  any  part  of  a  legacy,  or  make  distribution  of  any 
part  of  the  personal  estate,  on  payment  of  the  "proportion  of  the 
duties  in  respect  of  such  parts  of  the  personal  estate  as  shall  be  so 
administered. 

Sect.  27.     That  no  executor  or  administrator,  or  trustee,  shall 
pay,  deliver,  or  satisfy,  or  compound  for  any  legacy  or  residue  of 
personal  estate,  or  any  part  thereof  thereby  subjected  to  a  duty, 
without  taking  a  receipt  or  discharge  in  writing,  expressing  the 
date  of  such  receipt  and  name  of  the  testator  or  intestate,  and 
the  name  of  the  legatee  or  party  in  distribution,  and  of  the  person 
to   whom   the  receipt  is  given,  and  the  amount  of  the  legacy  or 
residue,  or  part  thereof,  and  of  the  duty  payable  thereon,  and  no 
written   receipt  shall  be  received  in  evidence,  unless  stamped  as 
required  by  that  act,  and  no  evidence  shall    be   given  of  payment 
[527]  of  any  such  legacy   or  residue,  or  part  of    residue,  with- 
out producing  such  receipt  stamped,  unless  payment  of  the  duty 
shall  be  first  proved  ;  provided   that  a   copy  of  the   entry  in   the 
commissioners'   books   shall   be  evidence  of  such  payment :  pro- 
vided also,  that  payment  of  any  annuity,  or  legacy  charged  as  an 
annuity,  shall  not  be  deemed  a  payment  for  which  such  stamped 
receipt  shall  be   required,  except  that  which  shall  complete  the 
payment  for  the  first  four  years. 


APPENDIX.  527 

Sect.  28.  That  any  executor,  or  administrator,  or  trustee,  or 
other  person  liable  to  pay  the  aforesaid  duty,  who  shall  pay,  or 
satisfy,  or  compound  for  any  legacy  or  residue,  without  taking 
such  receipt  as  aforesaid,  and  causing  it  to  be  stamped  within  the 
time  allowed  by  that  act,  shall  forfeit  ten  per  cent,  on  the  money 
or  value  for  which  such  receipt  ought  to  have  been  given  ;  and 
•  every  person  receiving  such  legacy  or  residue,  without  signing 
such  receipt,  expressing  the  duty  to  have  been  allowed  or  paid, 
and  dated  on  the  day  of  signing,  shall  forfeit  ten  per  cent,  on  the 
money  or  value  of  the  property  so  received  or  taken. 

Sect.  29.  That  every  such  receipt  shall  be  brought  within 
twenty-one  days  from  the  date  to  the  stamp  office  or  other  ap- 
pointed office,  to  be  stamped,  paying  the  duty  for  it,  and  on  such 
payment  the  proper  officer  shall  write  thereon  an  acknowledgment 
of  the  duty  paid  in  words  in  length,  and  bearing  date  on  the  day 
of  payment,  and  sign  it,  and  enter  an  account  in  a  proper  book, 
and  then  the  receipt  shall  be  stamped  with  the  proper  one  of  the 
four  stamps;  and  if  the  duty  shall  be  paid  at  any  inferior  office, 
the  receipt,  with  the  acknowledgment  of  the  duty  paid, 
shall  within  twenty-one  days  be  sent  to  the  head  office,  and  be 
there  stamped ;  and  the  inferior  officer  shall  sign  an  acknowledg- 
ment that  such  receipt  was  left  with  him  for  such  purpose,  and 
such  acknowledgment  shall  be  returned  to  him  on  his  re-delivering 
the  legacy  receipt  stamped  ;  but  if  any  such  legacy  receipt  shall 
not  be  brought  to  any  such  office  within  twenty-one  clays,  it  may 
be  brought  in  like  manner  within  three  calendar  months  after  the 
[528]  date  thereof,  paying  the  duty,  and  ten  per  cent,  on  that 
duty  as  a  penalty,  and  the  receipt  may  be  then  stamped.  But 
the  commissioners  shall  not,  on  any  pretence,  except  as  after  men- 
tioned, stamp  any  receipt  unless  the  duty  shall  be  paid,  and  the 
receipt  produced  to  be  stamped  in  manner  and  within  the  times 
respectively  limited  as  aforesaid. 

Sect.  30.  That  if  it  shall  appear  to'the  satisfaction  of  the  com- 
missioners, on  oath  or  affirmation,  before  a  Justice  of  peace,  or 
Master  or  Masters  extraordinary  in  Chancery,  that  less  duty  has 
been  paid  for  any  legacy  or  residue  than  ought  to  have  been  paid 
by  mistake,  without. intent  to  defraud,  and  if  application  be  made 
to  the  commissioners  to  rectify  such  mistake  before  any  suit,  and 
within  three  calendar  months  after  payment  of  what  was  really 
paid,   the  commibsioncrs  may    accept  the  difference  with  ten  per 


.528  APPENDIX. 

cent,  thereon,  as  a  penalty  in  full  of  the  duty  and  all  penalties, 
and  may  cause  an  acknowledgment  to  be  written  after  the  pay- 
ment of  the  just  duty  on  the  receipt,  and  cause  the  receipt  to  be 
properly  stamped. 

Sect.  31.  That  the  party  paying  or  receiving  any  legacy  or  re- 
sidue contrary  to  the  provisions  of  that  act,  who  shall,  within 
twelve  calendar  months  after  the  offence  committed,  discover  the 
other  party  or  parties  offending,  so  that  he  or  they  may  be  thereof 
convicted,  they  shall  be  discharged  from  all  penalties  incurred 
under  that  act. 

Sect.  32.  That  where  by  reason  of  the  infancy,  or  absence  be- 
yond sea,  of  a  legatee,  or  party  in  distribution,  the  executor  or 
administrator  cannot  pay  any  legacy  or  residue,  though  he  may 
have  assets,  he  may  pay  such  legacy  or  residue,  or  any  part 
thereof,  deducting  the  duty,  into  the  Bank,  with  the  privity  of  the 
accountant  general  of  the  Court  of  Chancery,  to  the  account  of 
the  person  entitled,  and  such  payment  shall  be  a  sufficient  discharge 
provided  the  duty  be  paid,  and  the  accountant  general  shall  lay  it 
out,  without  any  formal  request,  in  the  purchase  of  three  per  cent, 
consolidated  annuities,  which,  with  the  dividends  thereon,  shall 
be  transferred  to  the  party  entitled,  by  application  to  the  Court 
[529]  of  Chancery  on  motion  or  by  petition  in  a  summary  way, 
provided  that  if  the  money  afterwards  appear  to  have  been  impro- 
perly paid  in,  the  Court  may  on  petition  in  a  summary  way  dispose 
of  it  as  justice  shall  require;  and  if  it  shall  appear  that  too  much 
duty  has  been  paid,  the  excess  shall  be  returned  by  the  commis- 
sioners of  stamps  ;  and  if  it  shall  appear  that  the  duty  paid  was  too 
little,  the  party  who  paid  the  money  into  the  Bank  may  pay  the 
deficiency,  with  the  penalties,  if  any,  and  may  apply  to  the  Court 
of  Chancery  in  a  summary  way  for  repayment  of  the  further  money 
so  paid  to  the  commissioners  for  duty  out  of  the  money  in  the  Bank. 

Sect.  33.  That  if  at  the  end  of  two  years  after  the  death  of  the 
testator  or  intestate,  it  shall  appear  to  the  commissioners,  that  it 
will  require  time  to  collect  the  debts  or  effects,  or  that  from  cir- 
cumstances it  will  be  difficult  to  ascertain  and  adjust  the  amount 
of  the  residue,  and  the  parties  interested  shall  desire  to  compound 
the  duty,  the  parties,  with  consent  of  the  commissioners,  may 
apply  to  the  Court  of  Exchequer  in  England  or  Scotland,  if  the 
deceased  resided  there,  and  in  manner  prescribed  in  the  clause, 
obtain  leave  for  such  purpose. 


mtenijix.  52(J 

Seel.  34.  That  if  any  lime  after  paying  the  duty  on  a  legacy, 
or  a  residue,  it  shall  be  necessary  for  any  legatee  or  party  enti- 
tled, to  refund  all  or  any  part  of  what  he  received,  the  commis- 
sioners may  on  due  proof  made  on  oath  of  the  amount  of  such 
sum  refunded,  repay  the  money  over-received  for  the  duty. 

*  Sect.  35.  That  where  an  executor  or  administrator  shall  be 
entitled  to  any  legacy  or  residue,  lie  shall  be  chargeable  with  the 
duty  when  he  shall  be  entitled  in  a  course  of  administration  to 
retain  it,  and  he  shall,  before  retaining,  transmit  to  the  comrais- 
[530]  sioners  of  stamps  a  note  of  the  particulars  intended  to  be 
retained,  and  the  amount  and  value  thereof,  and  the  duty  he  offers 
thereon,  and  the  commissioners  shall  charge  the  properduty  thereon 
and  it  shall  be  paid ;  and  on  such  payment  the  proper  officer  shall  at 
the  foot  of  a  duplicate  of  the  assessment  duly  stamped  give  a  re- 
ceipt for  the  said  duty,  which  receipt  shall  be  a  discharge  for  the 
duty  ;  and  if  such  executor  or  administrator  shall  neglect  to  pay 
such  duty  within  fourteen  days  after  it  ought  to  have  been  paid, 
lie  shall  forfeit  and  pay  treble  the  value  of  the  duty. 

Sect.  37.  That  if  probate,  or  grant  of  administration  shall  be 
repealed  after  the  executor  or  administrator  shall  have  paid  any  of 
the  said  duties  out  of  the  effects  of  the  deceased  which  shall  not 
be  allowed  to  him  because  improperly  paid,  the  commissioners 
shall  repay  the  duties  so  paid.  But  if  the  duty  ought  to  have  been 
paid  by  the  rightful  executor  or  administrator,  then  the  payment 
shall  be  valid,  and  allowed  by  him  in  account,  and  shall  be  deemed 
made  as  in  a  due  course  of  administration. 

Sect.  38.  That  persons  swearing  or  affirming  falsely  touching 
the  said  duties,  shall  be  subject  to  the  penalties  of  perjury. 

Sect.  39.  That  persons  altering  any  assessment  or  receipt  after 
the  same  shall  have  been  signed  by  the  proper  officer;  or  when 
altered,  utter  or  publish  the  same  as  true,  with  intent  to  defraud 
His  Majesty,  shall  forfeit  five  hundred  pounds. 

Sect.  49.  That  persons  counterfeiting  the  said  stamps  shall 
suffer  death  as  in  case  of  felony  without  benefit  of  clergy. 

*  Upon  this  section  it  has  been  decided  that  the  legacy  *duty  is  to  be  paid 
upon  the  aggregate  amount  of  the  residue  of  the  testator's  property,  at  the 
time  of  the  executor's  delivering  into  the  stamp  office  the  note  of  what  he 
•  intends  to  retain  as  residuary  legatee.  And  that  interest  accumulated  upon 
the  residue  constitutes  part  thereof,  and  is  liable  to  the  duty.  Attorney, 
General  v.  Lord  G.  II.  Cavendish,  1  WigUtwick,  82. 


530  APPENDIX. 

Sect.  4  3.  That  one  moiety  of  all  penalties  and  forfeitures 
thereby  imposed,  where  no  other  mode  of  prosecution  is  thereby 
prescribed,  shall,  if  sued  for  within  three  calendar  months  next 
after  they  were  incurred,  be  to  the  King,  and  the  other  moiety, 
with  the  full  costs  of  suit,  to  the  informer  or  person  suing  for 
them  within  the  time  aforesaid  ;  and  they  may  be  sued  for  in  the 
Court  of  Exchequer  in  England  for  offences  in  England,  and  in  ' 
[531]  Scotland  for  offences  there.  But  proceedings  may  be  stopped, 
if  it  appear  that  the  penalties  were  incurred  without  intention  of 
fraud. 

Sect.  44.  That  in  default  of  prosecution  for  such  penalties 
within  the  time  aforesaid  they  shall  be  recoverable  only  for  the 
crown,  by  information  in  the  Court  of  Exchequer  in  England  and 
Scotland  respectively. 

Sect.  47.  That  all  actions  or  suits,  which  shall  be  commenced 
against  any  person  for  anything  done  in  pursuance  of  that  act, 
shall  be  commenced  within  six  calendar  months  after  the  fact 
committed,  and  not  afterwards. 

By  the  stat.  45  Geo.  3.  c.  28.  sec.  2.  it  is  enacted,  That  the 
duties  granted  by  this  act  shall  not  extend  to,  or  be  charged  or 
payable  in  respect  of  any  legacies  satisfied  out  of  any  real  or 
personal  estate,  or  in  respect  of  any  residue  or  share  of  any  per- 
sonal estate,  or  of  any  moneys,  or  residues,  or  parts  or  shares  of 
moneys  arising  from  the  sale  of  any  real  estate  of  any  person 
dying  before' the  passing  of  this  act. 

Sect.  3.  That  nothing  herein  contained  shall  extend  to  charge 
with  any  of  the  duties  hereby  granted  any  legacy  or  residue,  or 
part  or  share  of  residue,  which  shall  be  given  or  pass  to  or  for  the 
benefit  of  the  husband,  or  wife  of  the  deceased  ;  or  to  or  for  the 
benefit  of  any  of  the  royal  family. 

Sect.  4.  That  every  gift  by  any  will  or  testamentary  instru- 
ment of  any  person  dying  after  the  passing  of  this  act,  which  by 
virtue  of  any  such  will  or  testamentary  instrument  shall  have 
effect,  or  be  satisfied  out  of  the  personal  estate  of  such  person  so 
dying,  or  out  of  any  personal  estate  which  such  person  shall  have 
power  to  dispose  of  as  he  or  she  shall  think  fit,  or  which  shall  have 
been  charged  upon  or  made  payable  out  of  any  real  estate,  or  be 
directed  to  be  satisfied  out  of  any  moneys  to  arise  by  the  sale  of. 
any  real  estate  of  the  person  so  dying,  or  which  such  person  may 
have  the  power  to  dispose  of,  whether  the  same  shall  be  given  by 


APPENDIX.  532 

way  of  annuity,  or  in  any  other  form,  shall  be  deemed  and  taken 
[532]  to  be  a  legacy  within  the  true  intent  and  meaning  of  this 
Act:  Provided  always,  that  nothing  herein  contained  shall  be  con- 
strued to  extend  to  the  charging  with  the  duties  by  this  Act 
granted,  any  specific  sum  of  money,  or  any  share  or  proportion 
thereof,  charged  by  any  marriage  settlement  or  deed  upon  any 
real  estate,,  in  any  case  in  which  any  such  specific  sum,  or  share 
or  proportion  thereof,"  shall  be  appointed  or  apportioned  by  any 
"will  or  testamentary  instrument  under  ajiy  power  given  for  that 
purpose  by  any  such  marriage  settlement  or  deed. 

Sect.  5.  That  the  duties  hereby  granted  upon  legacies,  or  charged 
upon,  or  made  payable  out  of  any  real  estate,  or  out  of  any  mo- 
neys to  arise  "by  the  sale  of  any  real  estate,  or  upon  residues,  or 
parts  or  shares  of  residues  of  any  such  moneys,  shall  be  accounted 
for,  answered^  and  paid  by  the  trustees,  to  whom  the  real  estate 
shall  be  devised,  out  of  which  the  legacy,  or  any  money  arising, 
out  of  the  sale  or  mortgage,  or  other  disposition  of  such  real  es- 
tate shall  be  to  be  paid  or  satisfied  ;  or  if  tfcere  shall  be  no  trus- 
tees, then  by  the  person  entitled  to  such  real  estate,  subject  to  any 
such  legacy,  or  by  the  person  empowered  or  required  to  pay  or 
satisfy  any  such  legacy ;  and  the  said  duties  shall  be  retained  by 
the  person  paying  or  satisfying  any  such  legacy,  or  share  of  mo- 
ney, in  like  manner,  and  according  to  such  rules  and  regulations, 
and  under  and  subject  to  such  penalties,  as  far  as  the  same  can  be 
made  applicable,  as  are  contained  in  Stat.  36  Geo.  3.  c.  52. 

By  Stat.  42  Geo.  3.  c.  99.  Sect.  2.  it  is  enacted,  That  in  every 
case  in  which  an  executor  or  executors,  or  administrator  or  ad- 
ministrators, shall  not  have  paid  the  duties  granted  and  payable 
upon  or  in  respect  of  any  legacies  or  any  personal  estate,  or  any 
share  or  shares  of  any  personal  estate,  of  any  persons  dying  in- 
testate, by  and  in  pursuance  of  an  Act  passed  in  the  thirty-sixth 
year  of  the  reign  of  His  present  Majesty,  or  any  other  Act  or 
Acts  of  Parliament  relating  to  duties  on  legacies  or  shares  of  per- 
sonal estates,  within  proper  and  reasonable  time,it  shall  be  lawful 
[533]  for  His  Majesty's  Court  of  Exchequer,  upon  application  to 
be  made  for  that  purpose  on  behalf  of  the  commissioners  appointed 
for  managing  the' duties  on  stamped  vellum,  parchment,  or  paper, 
on  such  affidavit  or  affidavits  as  to  the  said  Court  may  appear  to 
be  sufficient,  to  grant  a  rule,  requiring  such  executor  or  execu- 
tors, administrator  or  administrators,  to  shew  cause  why  he,  she 


533  APPENDIX. 

or  they  should  not  deliver  to  the  said  commissioners  an  account, 
upon  oath,  of  all  the  legacies,  or  of  the  personal  property,  re- 
spectively paid,  or  to  he  paid,  or  administered  hy  him,  her  or 
them,  as  the  case  may  he,  and  why  the  duties  on  any  such  lega- 
cies, or  any  shares  or  residue  of  any  such  personal  estate,  have  not 
been  paid,  or  should  not  be  forthwith  paid  according  to  law,  and 
to  make  any  such  rule  of  court  absolute  in  every  case  in.which  the 
same  may  appear  to  the  said  court  to  be  proper  and  necessary  for 
the  better  enforcing  the  payment  of  any  of  the  said  duties. 

By  the  Statute  48  Geo.  3.  c.  149.  sect.  35.  it  is  enacted,  That 
from  and  after  the  passing  of  this  Act,  the  probate  of  the  will  of 
any  person  deceased,  or  the  letters  of  administration  of  the  ef- 
fects of  any  person  deceased,  heretofore  granted,  or  to  be  here- 
after granted,  either  before  or  upon  or  after  the  tenth  day  of  Oc- 
tober, one  thousand  eight  hundred  and  eight,  shall  be  deemed  and 
taken  to  be  valid,  and  available  by  the  executors  or  administra- 
tors of  the  deceased,  for  recovering,  transferring  or  assigning  any 
debt  or  debts,  or  othef  personal  estate  or  effects,  whereof  or  where- 
to the  deceased  was  possessed  or  entitled,  either  wholly  or  par- 
tially, as  a  trustee,  notwithstanding  the  amount  of  value  of  such 
debt  or  debts,  or  other  personal  estate  or  effects,  or  the  amount 
or  value  of  so  much  thereof,  or  such  interest  therein,  as  was  trust 
pvoperty  in  the  deceased  (as  the  case  may  be),  shall  not  be  in- 
cluded in  the  amount  or  value  of  the  estate,  in  respect  of  which 
the  -stamp  duty  was  paid  on  such  probate  or  letters  of  adminis- 
tration. 

By  Sect.  36,  That  where  the  executors  or  administrators  of  any 
[534]  person  deceased  shall  be  desirous  of  transferring  or  of  re- 
ceiving the  dividends  of  any  share,  standing  in  the  name  of  the  de- 
ceased, of  and  in  any  of  the  Government  or  Parliamentary  stocks 
or  funds  transferable  at  the  Bank  of  England,  or  of  and  in  the 
stock  and  funds  of  the  Governor  and  Company  of  the  Bank  of 
England, 'or  of  and  in  the  stock  and  funds  of  any  other  company, 
corporation,  or  society  whatsoever,  passing  by  transfer  in  the  books 
of  such  company,  corporation  or  society,  under  and  by  virtue  of 
any  such  probate  or  letters  of  administration  as  aforesaid,  and  shall 
allege  that  the  deceased  was  possessed  thereof  or  entitled  thereto, 
either  wholly  or  partially,  as  a  trustee,  it  shall  be  lawful  for  the 
said  Governor  and  Company  of  the  Bank  of  England,  and  for  any 
such  other  company,  corporation  or  society  as  aforesaid,  or  their 


APPENDIX.  534 

respective  officers,  for  their  indemnity  and  protection,  to  require 
such  affidavit  or  affirmation  of  the  fact,  as  hereinafter  is  mentioned, 
if  ihe  fact  shall  not  otherwise  satisfactorily  appear  ;  and  thereupon 
to  permit  such  executors  or  administrators  to  transfer  the  stock  or 
fund  in  question,  or  receive  the  dividends  thereof,  without  regard 
to  the  amount  of  the  stamp  duty  on  the  probate  of  the  will  of  the 
deceased,  or  the  letters  of  administration  of  his  or  her  effects; 
and  where  the  executors  or  administrators  of  any  person  deceased 
shall  have  occasion  to  recover  any  debt  or  debts,  or  other  personal 
effects,  due  or  apparently  belonging  to  the  deceased,  and  shall  al- 
lege that  the  deceased  was  possessed  thereof  or  entitled  thereto, 
cither  wholly  or  partially,  as  a  trustee,  it  shall  be  lawful  for  the 
person  or  persons  liable  to  pay  or  deliyer  such  debt  or  debts  or 
other  effects,  to  require  such  affidavit  or  affirmation  of  the  fact  as 
hereinafter  is  mentioned,  if  the  fact  shall  not  otherwise  satisfac- 
torily appear ;  and  thereupon  to  pay,  deliver,  or  make  over  the  debt 
or  debts,  or  other  effects  in  question-,  to  such  executors  or  admi- 
nistrators, or  as  they  shall  direct,  without  regard  to  the  amount  of 
the  stamp  duty  on  the  probate  of  the  will  of  the  deceased,  or  the 
[5  35]  letters  of  administration  of  his  or  her  effects  :  And  where  the 
executors  or  administrators  of  any  person  deceased  shall  have  oc- 
casion to  assign  or  transfer  any  debt  or  debts  due  to  the  deceased, 
or  any  chattels  real,  or  other  personal  effects,  whereof  or  whereto 
the  deceased  was  possessed  or  entitled,  and  shall  allege  that  the 
same  respectively  was  or  were  due  to  or  vested  in  the  deceased, 
cither  wholly  or  partially,  as  a  trustee,  it  shall  be  lawful  for  the 
person  or  persons,  to  whom  or  for  whose  use  such  debt  or  debts, 
chattels  real,  or  other  personal  effects,  shall  be  proposed  to  be  as- 
signed or  transferred,  to  require  such  affidavit  or  affirmation  of 
the  fact  as  hereinafter  is  mentioned,  if  the  fact  shall  not  otherwise 
satisfactorily  appear  ;  and  thereupon  to  accept-  the  proposed  as- 
signment or  transfer,  without  regard  to  the  amount  of  the  stamp 
duty  on  the  probate  of  the  will  of  the  deceased  or  the  letters  of  ad- 
ministration of  his  or  her  effects. 

Sect.  "7.  That  upon  any  such  requisition  as  aforesaid  the  exe- 
cutor or  executors,  administrator  or  administrators  of  the  de- 
ceased, or  some  other  person  or  persons  to  whom  the  facts  shall 
be  known,  shall  make  a  special  affidavit  or  affirmation  of  the  facts 
and  circumstances  of  the  case,  stating  the  property  in  question, 

47 


535  APPENDIX. 

and  that  the  deceased  had  not  any  beneficial  interest  whatever  in 
the  same,  or  no  other  beneficial  interest  therein  than  shall  be  par- 
ticularly mentioned  and  set  forth  (as  the  case  may  be)  in  trust  for 
some  other  person  or  persons,  whose  name  or  names,  or  other 
sufficient  description,  shall  be  specified  in  such  affidavit  or  affir- 
mation, or  for  such  purposes  as  shall  be  specified  therein ;  and  that 
the  beneficial  interest  of  the  deceased,  if  any,  in  the  property  in 
question,  doth  not  exceed  a  certain  value  to  be  therein  also  speci- 
fied, according  to  the  best  estimate  that  can  be  made  thereof,  if 
reversionary  or  contingent,  and  that  the  amount  or  value  of  the 
estate,  for  which  the  stamp  duty  was  paid  on  the  probate  of  the 
will  of  the  deceased,  or  on  the  letters  of  administration  of  his  or 
her  effects,  is  sufficient  to  include  and  cover  such  beneficial  inte- 
[536]  rest  of  the  deceased,  as  well  as  the  rest  of  the  personal  estate, 
m  hereof  or  whereto  the  deceased  was  beneficially  possessed  or  en- 
titled, and  for  which  such  probate  or  letters  of  administration  shall 
nave  been  granted,  as  far  as  the  same  have  come  to  the  knowledge 
of  such  executor  er  executors,  administrator  or  administrators  ; 
and  where  the  affidavit  or  affirmation  of  the  facts  and  circum- 
stances of  the  trusts  shall  be  made  by  any  other  person  than  the 
executor  or  Executors,  administrator  or  administrators  of  the  de- 
ceased, such  executor  or  executors,  administrator  or  administra- 
tors, shall  make  affidavit  or  affirmation,  that  the  same  are  true  to 
the  best  of  his,  her,  or  their  knowledge,  and  that  the  properly  in 
question  is  intended  to  be  applied  and  disposed  of  accordingly ; 
■which  affidavits  or  affirmations  shall  be  sworn  or  made  before  a 
Master  in  Chancery,  ordinary  or  extraordinary,  (who  is  hereby 
authorized  to  take  the  same,  and  administer  the  proper  oath  or 
affirmation  for  that  purpose,)  and  shall  be  delivered  to  the  party  or 
parties  requiring  the  same,  and  shall  be  sufficient  to  indemnify  and 
protect  the  party  or  parties  acting  upon  the  faith  thereof;  and  if 
any  person  or  persons  making  any  such  affidavit  or  affirmation  as 
aforesaid,  shall  knowingly  and  wilfully  make  false  oath  or  affirma- 
tion, of  or  concerning  any  of  the  matters  to  be  therein  specified 
and  set  forth,  every  person  so  offending,  and  being  thereof  lawfully 
convicted,  shall  be  subject  and  liable  to  such  pains  and  penalties 
as  by  any  law  now  in  force  persons  convicted  of  wilful  and  cor- 
rupt perjury  are  subject  and  liable  to. 

13y  Sect.  43.  Commissioners  are  authorized  to  remit  penalties 
incurred  before  passing  this  act,  by  non-payment  of  the  duty  an 


APPENDIX.  536 

legacies,  if  the  duty  in  arrear  shall  be  paid  on  or  before  31st  Ja- 
nuary 1809. 

Sect.  44.  That  in  all  cases  not  provided  for  by  the  preceding 
clause,  where  any  receipt  or  discharge  given  for  any  legacy,  or 
for  the  residue  or  any  share  of  the  residue  of  any  personal  estate, 
which  shall  have  been  given  by  will  or  other  testamentary  instru- 
ment, or  have  devolved  to  any  person  or  persons  upon  intestacy, 
[537]  shall  be  brought  to  the  head  office,  to  be  stamped  after  the 
expiration  of  three  calendar  months  from  the  date  thereof,  it  shall 
be  lawful  for  the  said  commissioners  to  cause  the  same  to  be  duly 
stamped,  for  making  the  same  available,  on  payment  of  the  duty 
which  shall  be  payable  in.  respect  thereof,  together  with  the  pe- 
nalty incurred  in  consequence  of  the  same  not  having  been  brought 
to  be  stamped  before  the  expiration  of  such  three  calendar 
months;  and  where  any  such  receipt  or  discharge  shall  have  been 
signed  out  of  Great  Britain,  if  the  same  shall  be  brought  to  be 
stamped  within  twenty-one  days  after  its  being  received  in  Great 
Britain,  it  shall  be  lawful  for  the  said  commissioners  to  remit  any 
penalty  that  may  have  been  incurred  thereon,  and  to  cause  the 
same  to  be  duly  stamped,  on  payment  of  the  duty  payable  in  re- 
spect thereof;  any  thing  contained  in  any  former  act  or  acts  to 
the  contrary  notwithstanding. 


1  N  1)  E  X 


—  •»►«©!»«— 


Page 

ABATEMENTr-of  legacies  .339,  et  seg. 

Absence — beyond  sea  ...  93.   104 

Account — action  of,  by  executor         -  -  -  433 

stated  -  -  -  -  -         -  162 

promise  to  executor  thereupon — how  it  operates       ib, 
bill  in  equity  against  executor  or  administrator,  for, 
of  assets         .....     72,479 

how  it  shall  be  taken  in  equity  between  surviving 

partner,  and  the  representatives  of  the  deceased  454 
executor  not  admitting  assets  bound  to,  in  equity, 

though  his  co-executor  admit  them         -  •  -  486 

.on  a  bill  to,  by  infant  legatee  against  two  executors, 
one  of  whom  in  his  answer  denied  proving  the 
will,  or  receiving  any  assets,  account  directed 
against  both         -  -  -  -  -  486 

administrators  bound  to,  as  executors         -     82.  96,  97 
— in  the  spiritual  court,  at  the  suit  of  legatees,  or 
parties  in  distribution  -         •    -       491.  49*4 

proof  of,  by  executor  -  -  -  -  492 

how  controverted  -  -     ib. 

executor  subject  to  the  penalties  of  per- 
jury if  false         ....     ib. 

proof  of,  after  the  executor's  death  -  -     ib. 

exhibited  by  the  administrator,  when  it 

must  be  sworn  to,  when  it  need  not  -  493 
not  conclusive  against  legatees,  or  par- 
ties in  distribution,  who  are  absent       49  ; 


540  INDEX. 

Account,  proof  of — continued.  Page 

citation  by  executor  or  administrator  of 
legatees,  or  parties  in  distribution,  on 
passing  his  -  -  -  494 

at  the  promotion  of  a  creditor  -  495 

creditor  not  permitted  to  call  for  vouchers,  object  to 

the  account  -  -  -  -    ib. 

Action — See  Remedies 

Ademption — of  a  legacy         -  -  329,  et  seq. 

pro  tanto         -  333 

revocation  of  a  will  in  the  nature  of  -     21 

Administration — Origin  of  80,  et  teg. 

of  husband's  right  to  83,  84.    125.   242,  243.   373 
how  controuled  or  varied  -  85,  86.  218 

where  the  grant  to  the  husband  is  necessary    217 
where  not         -  -  -  -  -     ib. 

cgeteroriim         ....         68.   86 
grant  of,  to  widow  or  next  of  kin  -  86 

of  part  to  widow  and  part  to  next  of  kin      -     87 
order  in  which  kindred  are  entitled  to  -     90 

half-blood  equally  admissible  to         -  -     91 

when  committed  to  feme  covert,  and  how  ib. 

how    granted  if  wife   be  next  of  kin  and  a 

minor  •  -  -  -  -     92 

teases  on  her  coming  of  age  -  -     ib. 

Avho  incapable  of  taking        -  -  -     93 

person  incapable  of  being  an  executor  -     ib. 

attainted  of  treason  -  -     ib. 

of  felony        -  -  -     ib. 

outlaw         -  -  .  -  -     ib. 

prisoner  -  -  -  -     ib. 

persons  beyond  sea  -  .  -     ib. 

bankrupt  -  -  -    ib. 

uon  compos  mentis  -  -  103.  122 

feme  covert  competent  to  take  -  -     94 

alien  friend  competent  to  take  -  -     ib. 

though  only  of  the  half-blood  -     ib. 

analogy  of,  to  probate  ...     ib. 

privilege  of  granting  personal  -  -     ib. 


INDEX.  541 

Administration — continued.  Page 

a  party  generally  incapable  of  acting  before 
grant  of  -  -  -  -     9  5 

may  file  a  bill  in  chancery  before    -     ib,. 
not  commence  an  action  at  law 
before         -  »'*« 

penalty  for  acting  and  omitting  to  take  out 

for  six  months       -  -  -  -96 

when  letters  of,  issue  -  -  -     il). 

oath  in  taking  out     -  -  -  -    Hb. 

bond  and   condition   thereof,   91.   97.  247,  248. 

370.  493 
■when  once  granted  not  to  be  committed  to 

another  during  the  life  of  grantee  -     98 

special  -  -  -  -  -     ib. 

cum  tcstamento   annexo  4S,  44.  65.92.98.  118. 

321.  372 
not  granted  till  executor  renounces  or  fails 

to  appear  -  -  -  -     93 

or  if  several  executors,  till  they  all  renounce, 

or  fail  to  appear     -  7"' 

grant  of  such  to  residuary  legatee  or  lega- 
tees, -  -  99,117 
durante  minoritatc,  34.   \00,  et  scq.  123,  124.  357 
in  a  restrictive  form       -  4°4 
effect  thereof           -             -             -  405 
when  it  shall  not  be  granted             -             -  102 
after  such  grant  of,  when  receiver  appointed 

102,  103 
when  it  ceases,  ...        100,  101 

if  granted  during   the  minority  of  several 

infants       -  -  -  -  -    101 

old   distinction   between   such  grant  during 
the  minority  of  infant  executor,  and  dur- 
ing that  of  next  of  kin  -  -    100 
ordinary's   power  at  common   law  ex- 
tended only  to  the  former  case  -   124 
pendente  lite           .               .               ■               •  .    10o 
not  granted  till  a  plea  has  been  given  in  and 
admitted                .                •              •  ,    ib. 


342  INDEX. 

Administration — -continued,  Pa°-e 

receiver  not  appointed  after  such  grant  103 

during  incapacity  .  .  .     ib. 

durante  absentia  ,  .  70.  104 

by  virtue  of  the  statute  .  104,  105 

when  it  ceases  .  .  .   104 

to  a  creditor  ..  104.122.473 

where  several  creditors  apply  .  106 

to  a  debtor  .  .  .128.  349 

to  a  legatee  .  .  .  .  .   105 

to  such  person  as  the  ordinary  shall  approve     16. 

ordinary's  power  of  granting  administration 

at  common  law,  in  what  cases      .  .     ib. 

may  in  such  cases  impose  terms 

on  grantee         .  .  .100 

limited  in  regard  to  time  .  .     ib. 

to  property  .  .     ib. 

not  to  be  twice  granted  in  respect  to  one  thing     ib. 

in  case  of  several  grants  of,  grantees  liable  to 

be  sued  as  one  person,  .  106,  107 

on  condition  .  ...    107 

to  appointee  of  the  crown  of  the  effects  of 
a  bastard  .  .  107.  3S6,  387 

to  attorney  .  .  .  .108 

grant  of,  in  a  foreign  court  .  .     ib. 

of  the  effects  of  seamen  and  marines  .    109 

on  death  of  administrator  or  executor  intestate  1 14 
grant  of,  to  several,  survives  .  114.407 

immediate  .  .  ••  .115 

on  death  of  executor  before  probate      ib. 
of  next  of  kin  before  grant 
of  administration  .    116 

in  case  of  death  of  husband  before 
he  takes  out  administration  to 
wife  .  .  116.224 

on  death  of  executor  residuary  lega- 
tee before  probate  intestate      117,  118 
on  leaving  a  will       .  .  .   1  IS 

de  bonis  won  .  .  116.124.349 

on  death  of  executor  after  probate 
intestate  .  .  .lit; 


INDEX.  543 

Administration — immediate  on — continued.  Page 

on  death  of  feme  covert  executrix.  1 18.  242 
and  residuary  legatee  -  -   IIS 

on  the  death  of  the  acting  .executor, 
and  renunciation  of  the  survivor     -     ib. 
or  such    survivor's    dying  intes- 
tate -  -  -      118,  119 
or  in  case  of  administration  du- 
ring the  minority  of  the  exe- 
cutor of  an  executor     -  -119 
as  well  de  bonis  7ion,  as  immediate,  may  be 

granted  to  residuary  legatee  -  -   117 

how  granted  -  -  -  -    1 19 

generally  by  writing  under  seal       -     ib. 
may  be  by  mere  entry  in  the  regis- 
try of  the  spiritual  court  -     ib. 
not  by  parol             ...     ib. 
in  the  grant  the  style  of  jurisdiction, 
as  well  as  name  of  the  ordinary, 
to  be  inserted       -              -             -   120 
a  party  may  refuse  accepting             -             -     ib. 
when  void       ....           46.  120 
when  voidable             -             -             -             -    121 
of  repealing  the  grant  of       -             -             -   122 
in  what  cases       -             -44.  122.  125 
in  what  not            -    '123,  124,  125,  126 
temporal  courts,  to  judge  of  the  cause  of     -    123 
of  repealing  for  want  of  form             -             -    125 
effect  of                 -             -              -     ib. 
or  quia  iinjiro'vide              -              -     ib. 
or  on  account  of  abuse     -'       125,  126 
effect  of  a  second  grant  of,  before  repeal  of 

first  -  -  -  -  -    126 

of  prohibition  when   ordinary  is  proceeding 
to  repeal  . 

in  what  cases  -  -  -    127 

in  what  not      -  -  .   -  -     ib. 

how  repeal  of,  affects  mesne  acts  when  the 
grant  was  void         -  -  -        127,128 

4S 


544  INDEX. 

Administration — immediate  on — continued.  Page 

or  voidable  ...        129,  297 

voidable  in  case  of  a  suit  by  citation  or 

appeal  -  -  129,  130,  131 

payment  of  debt  to  an  administrator  un- 
der grant  of,  void  or  voidable,  good  -  130 
effect  of  grant  of,  to  executor  deson  tort    367 
though  only  pendente  lite  -  368 

special,  ceasing,  effect  of  pending  an  ac- 
tion.against  the  administrator  -  407 
after    judgment    obtained    against 
such  administrator           -  -     ib. 
bond  creditor,  as  well  as  next  of  kin,  en- 
titled to  an  assignment  of  the  admini- 
stration bond  from  the  ordinary    495,  496 
what  breach  he  may  shew             -  496 
what  not                -             -             -     ib. 
Administrator — derives  his  authority  from  the  ordinary  95.  100, 

101.  114.  131 
interest  of 

when  it  vests       ... 
of  special  ... 

of  a  married  woman 
of  joint  -  -  -  - 

survives  -  -  114. 

oide  bonis  non    - 
powers  of 
office  of,  how  far  the  same  as  that  of  an 

executor  -  369 

bound  to  account  as  an  executor     82.  96,  97 
actions  by  -  -  -        157.431 

suits  in  equity  by  454 

actions  against  -  458.  474 

suits  in  equity  against     ...  479 
in  the  ecclesiastical  court  against  -  489 
powers  of  limited  -  404 

• 

actions  by  -     349.  405.  447,  448 

actions  against    -  -  -  474 


1 33. 

241 

- 

1 33 

- 

241 

- 

ib. 

- 

243 

243. 

408 

- 

243 

369, 

447 

INDEX.  •  545 

Administrator — powers  of — actions  against — continued.    Page 

where  pending  the  action, 
the    administration    de- 
termines -  -  407 
after  judgment      -  -     ib. 
powers  of  durante  minoritate  as  distinguished 

from  executor  durante  minoritate      -  -  406 

where  he  administers  in  part,  and  delivers  to 
the  executor  on  his  coming  of  age  all  the 
residue  -  -  -  -  475 

of  his  keeping  the  goods  after  executor  comes 

of  age  103.  474,  475 

actions  by  -  -  -  -  -  445 

actions  against  ■>•».--  474 

powers  of  durante  absentia         -  -  -  40  6 

.  of  fiendcnte  lite  «...     ib. 

'  of  joint  -  -  114.  407,  408 

not  distinguishable  from  those  of 

co-executors         -  -        407,  408 

actions  by  ...  448 

actions  against        -  -    .         -  471 

death  of  -  -  -   114 

de  bonis  non  -  .117.  349.  448 

actions  by  -  -  448 

actions  against        ...  474 

Advancement— of  a  child  -       329.  371.  376,  et  seq.  381 

pro  tanto  ....        377:  379 

what  shall  not  be  -  -  380,381.396 

by  the  custom  of  London  -  -   393,  et  seq. 

must  arise  exclusively  from  the  personal 

estate  -  -  -'  -  396 

not  restricted  to  a  provision  made  on  mar- 
riage, or  in  pursuance  of  a  marriage 
agreement  ....  397 

by  the  custom  of  York  ...  400 

may  arise  out  of  real  estate  -  -  401 

See  Distribution. 
Advowson — in  gross  or  in  fee  ...        189,190 

term  for  years  in         -  -      139.15  1.161.437 

.     after  an  avoidance      -  -     151,189,190.216 


546 


INDEX. 


Ad.yowson — continued.  Page 

purchase  for  son  of,  an  advancement  376,  377 

descended  to  the  heir  in  fee-simple,  real  assets    409 

Affidavit — of  executor  on  holding  to  bail  .    .         .  438 

Affinity  .  .  .  .  .  .  .386 

Agent — where  executor  embezzles  the  property     .  .'  427 

Alien — will. of  .  .  .  ..  .  .13 

executor  or  administrator      .  .  .  34.94 

when  incapable  of  being        .  .  .  .     ib. 

property  of,  in  our  funds       ....  387 

Allowance — executor  shall  has-e  no,  for  executing  the  office  456 

unless  directed  by  the  will    .     ib. 
whether  a  legacy  be  left  to 
him    as  a  recompence  or 
not  .  .  .     ib. 

but   in    what    special  cases 
entitled  to  a  commission  .  457 
Amercements — in  the  king's  courts  of  record 

in  the  king's  courts  baron 
Annexation  of  codicil  to  a  will 
Annuity — a  chattel  interest 

generally  descendable  to  the  heir 
when  not 
personal 

charged  on  lands    .  : 

out  of  a  parsonage 
grant  by  the  crown  of,  out  of  the  four  and  half  per 

cent.  Barbadoes  duty,  with  collateral  security  .  200 

to  commence  after  father's  death  an  advancement  377 

remedy  in  equity  to  secure  the  payment  of  .  482 

Annum ,  die m ,  et  vastum        .  .  .  .         144.  190 

Anvils  .  .  .  .  .  .  .197 

Appeal — in  regard  to  probate  .  .  .  .73 

to  administration  .  .  .  .95 

probate  suspended  by  .  .  73.  129 

administration  suspended  by         .  .  .131 

where  probate  is  affirmed  on  .  .75 

revoked  on  .  .  75.78.  131 

administration  revoked  on  .  -   129 

Appointment — of  wife  in  the  nature  of  a  will  .  .     85 


.  260 
.  ib. 
.  31 
178,  200 
178. 200.  203 
.178 
.  303 
.  305 
.   55 


INDEX.  547 

Appointment — continued.  Page 

of  the  crown  of  the  effects  of  a  bastard     107,  108 
Apportionment  of  rent  in  favour  of  executors  of  tenant  for 

life  ....         208.  43(5 

Appraisement — of  deceased's  effects  .  .       .250,251 

commission  of  .  .  73.252,253 

Apprentice — executor  has  no  interest  in  an  .  .   152 

how  far  executor  bound  to  maintain  .  476 

distinction    between   covenant  to   maintain, 

and  covenant  to  instruct  an  .  .     ib. 

justices  of  the  peace  have  no  authority  to  or- 
der an  executor  to  maintain  an       .  .     ib. 
by  the  custom  of  London  executor  bound  to 
put  the,  to  another  master  of  the  same  trade    ib. 
Apprentice  fee — no  advancement                 .             .             .  380 
no  advancement  by  the  custom  of  London    396 
Apprentice  parish  regulations — executor  bound  to  observe 

in  regard  to  .  .  .  476 

Arbitration — submission  to  by  executor  .  .  425 

Arrest — by  an  executor  before  probate  .  .     48 

•  executor  in  general  not  liable  to  .  .  467 

in  what  cases  he  is'  .  .     ib. 

Artichokes  .  .  .  .  .  .150 

Artificers,  British,  going  abroad — when  incapable  of  mak- 
ing a  will         .  .  .  .13 

of  being  executors  .  .36 

of  any  legacy  .  .  .  300 

Assent  .  .  .  .  .  .         306.  345 

Assets — '■definition  of  .  .  «.  .  .137 

what  are, 

term  of  years  devised  for  payment  of  debts  .   140 
leases  .  .  .  .    ib. 

though  executor  assent  to  the  devise  of 
them  ....     ib. 

estate  per  a utervie  .  .  .40 

.  value  of  lease  beyond  the  rent        141.  166.  239 
reversion  of  a  term  .  .  .141 

new  lease  granted  to  executor    "   .  .     ib. 

executor  chargeable  for  a  term  as,  where 
he  purchases  the  reversion  in  fee  .     ib. 


548  INDEX. 

Vssets — what  arc — continued.  Page 

lease  surrendered  by  executor  ~  .142 

land  devised  to  an  executor  for  a  term  for  pay- 
ment of  debts,  where,  during  the  term,  the 
fee  descends  on  him  .  .  "  .     ib. 

term  which  a  feme  covert  has  as  executrix, 
where  husband  purchases  the  reversion, 
though  extinct  as  to  her  yet,  in  respect  to  a 
stranger  .  .  .  .  .     ib. 

estate  in  fee  in   the   plantations    as  to  credi- 
tors .  .  .  .        416,  417 
lease  granted  to  executor  pursuant  to  covenant, 

with  the  testator         .  .  .        144,  160 

rent  in  arrear  at  the  testator's  death  .   145 

debt  or  damages  recovered  at  law         157,  158,  159, 

160,  161.  201 
money  recovered  by  decree  in  equity  160,  161 

goods  taken  out  of  executor's  possession  ,         .   153 
goods  delivered  to  executor  pursuant  to  con- 
tract with  the  testator  .  .  .   160 
chattels  resulting  to  executor  on  non-perform- 
ance of  the  condition  on   which   they  were 
granted                           .              ...  .164 
testator's  chattels  redeemed  out  of  pawn  with 
his  money                      ....     ib. 
if  redeemed   with  executor's  money,  the 
surplus                   '.              .              .              :   126 
a  remainder                      .              .              .              .164 
arising  by  increase                        .              .              .166 
profits  of  lands  demised              .              .              .     ib, 
lease  granted  by  a  copyholder  for  one  year  only  180 
promissory  note  given  to  testator's  wife            .  228 
money  deposited  by  her  to  be  kept  for  her  sepa- 
rate use                          ....  229- 
when  debt  due  from  executor  shall  be          349,350 
what  not 

term  raised  for  a  particular  purpose  not       142,  143 
lease  on  condition  not.  where  condition  is  bro- 
ken before  the  lessee's  death  .  .143 
trust  of  a  term  not                       ,             .             ,  Jb. 


INDEX.  549 

Assets — what  not — continued.  Page 

bond  assigned  by  testator  not  .  .118 

goods  bailed  for  a  particular  purpose  not         .   151 
goods  distrained  not  .  .  .     ib. 

debt  or   damages    recovered  by  testator   not, 
till  levied  or  reduced  into  possession,  or  re- 
leased by  executor  .  .        161,  162 
if  recovered  by  executor  they  are  assets 
immediately                      .             .  .162 
presentation  where  the  grantee  of  the  next  pre- 
sentation dies  after  the  church  becomes  void, 
and  before  presentation,  not                .             .  240 
money  by  marriage  agreement  articled  to  be 

invested  in  land  and  settled,  not  .  416 

copyhold   estates   not,  either  in   the  hands  of 
heir  or  devisee  .  .  .        411,412 

no  measure  of  justice  between  the  heir  and  executor  of 
mortgagee  .  .  .  .        184.  186 

application  of  ■    .  .  .  .  .258 

where  originally  deficient,  and  where  they  afterwards 

become  so  by  misapplication  .  .  .341 

when  aliened  by  executor  cannot  be  followed  by  a  cre- 
ditor at  law       ......  256 

and  in  ecmity  only  on  voluntary  alienations  by 
fraud  .....  257 

proof  of  .....  464 

admission  of,  executor  generally  bound  by  .  482 

express  ....     ib. 

implied  .  .  .        464.  483 

when  not  .  .  .     ib. 

when  the  admission  is  waived         .  •  .  483 

where  executor  refers  to  arbitration  the  question  whe- 
ther he  has  or  has  not  .  .  .  465 
judgment  of,  quando  ac cider int             .              .              .  400 
how  far  affected  by  the  assignment  of  commissioners 
of  bankrupt                               ....  48S 

bill  for  a  discovery  and  account  of,  in  what  cases  .  480 
legal  and  personal,  or  assets  enter  mains,  what  *  .  409 
legal  and  real,  or  assets  by  descent,  what         .    409,  et  scq, 


550  INDIA. 

Assets — legal  and  personal — continued.  Page 

term  in  gross  .  .   410 

estate //rr  auicr  vie  when  personal     ib. 
,    real, 

lands  descended  to  the  heir  in  fee  sim- 
ple ....  409 
advowson  so  descended  .  .     ib. 
estate  per  auter  vie  when  real          410,  41 1 
term  vested  in  trustee  to  attend  the  in- 
heritance                   .             .410.  427 
lands  devised  by  tenant  in  fee  simple     41 1 
unless  for  payment  of  debts         .     ib. 
or  for  raising  portions  for  younger 
children,  according  to  agreement 
before  marriage                .  .     ib. 
estate  in  fee  in  our  American  planta- 
tions             .              .              .        416,  417 
equitable  what,  and  how  distinguished  from  legal  4 12.  416 

legal, 

trust  estate  descended  to  the  heir  .  .  415 

equity  of  redemption  .         415$  416;  Semb. 

..        equitable, 

estates  devised  to  an  executor  to  sell         414.  Sinib. 
estates  descended  to  the  heir   charged   with  the 

payment  of  debts  :  .  .  414 

term  in  trust  to  attend  the  inheritance  .  427 

where  lands  shall  be,  only  for  the  payment  of  debts     .416 
only  for  the  payment  of  legacies  .     ib. 
the  marshalling  of,  in  favour  of  creditors         .        417.  420 
where  the  debt  is  considered  as  the 
personal  debt  of  the  testator  him- 
self, and  a  collateral    charge  on 
the  real  estate  .  .418 

Where  the  charge  is  on  the  real  estate 
principally,  and  the  personal  se- 
curity is  only  collateral  .     ib, 
priority  of  the  application  of  real,  when  the  personal 

estjfce  is  either  exempt  or  exhausted  .  .  419 

when  shall  not  be  marshalled   in  favour  of  creditors 

421,  422 


INDEX,  551 

Assets-—  continued.  Page 

the  marshalling  of,  in  favour  of  legatees  -        -  420 

as  against  lands  descended  -     ib. 

devised  420,421 

if  legacy  be  given  out  of  real  and 
personal  estate,  payable  at  a  fu- 
ture day,  and  legatee  die  before  422 
in  favour  of  wife's  claim  to  para- 
phernalia as  against  real  assets 
descended  -  -  -  -  ib, 
devised  -         -         -    422,423 

not  in  favour  of  a  charitable  be- 
quest      -----  423 
conversion  of  into  3  per  cents          -        -    ■     -        -  319 
Assignee — in  deed  ...  167,  168.  199 

in  law      •  -  -  -  167,  168 

after  mesne  assignments  -  -         169,170 

Assignment — executor's  interest  by  -  -         167.170 

by  executor  of  a  term  in  trust  to  attend  the  in- 
heritance -  -  -  .  427 
of  debt  to  the  king       -             -             -             -261 
of  legacy  by  commissioners  of  bankrupt     315.321 
of  administration  bond  by  the  ordinary       495,  496 
Attaint — writ  of                   -            -            -            -            -  159 
Attainted  person                   -             -              34.  9". 
Attainder — of  high  treason,  writ  of  error  to  reverse 

property  accruing  to  the  crown  by 
Attestation— -of  a  will 
of  a  codicil 
clause  of,  not  filled  up 
Attorney — administration  granted  to 
letter  of  - 

executor  or  administrator  of,  need  not  deliver  a 
bill  of  costs  before  suing  for  the  same  -  441 

Avowry — for  rent  as  incident  to  a  reversion  for  years  in 

arrear  at  the  testator's  death         -  434, 435 

accrued  due  after  it  437 

Audita  querela  -  -  128.131,132.159.260.268 

Auditors  where  the  king  is  executor  -  -  -     33 

Aunt  -  -  -  -  -  91.  3S5 

49 


103. 

134.213 

>e 

-  435 

-  260 

2.  16 

6.  16 

3 

-    108 

114.221 

552  INDEX. 

Award— executor  entitled  to  the  benefit  of  -  -   168 

executor's  submission  to  -  -        425.  465 

where  he  personally  engages  to  perform  -  465 

where  there  is  a  reference  of  the  question  whether 

he  has  or  has  not  assets  ...     f£. 

how  far  he  is  concluded  by  an,  he  has  submitted  to     ib. 
may  be  attached  for  non-performance  of     -  .  -    ib. 

money  due  to  him  by,  not  subject  to  foreign  attach- 
ment   "  -  ...  -  -  479 

Bail — executor  may  hold  to  438 

executor  in  general  not  held  to  467 

in  what  cases  he  may  be         -  ib. 

Bail-bond — action  by  executor  of  assignee  of     158.  161.432.438 

Bank — the  registering  of  probate  at  the  -        255,  256 

transfer  of  stock  at  the  .  .  .  .256 

of  stock  specifically  bequeathed       .  .     ib. 

subject  to  action  on  refusal  to  make  a  transfer         .     ib. 

Banknotes  .  .  •  .-  -        234,235 

Banker's  checks'  .....  235 

Bankrupt — next  of  kin  .  .  93.  103,  104 

executor  .  .  .     120.486,487,488 

commissioners  of,  cannot  seize  the  effects 

of  testator         .  .  .  134.488 

devastavit'  may  be  proved  under  a  com- 
mission of  .         429.  488 
legatee                   .             .                           .  315. 321 
receiver  appointed  in  case  an  executor  becomes      488 
executor  carrying  on  trade  pursuant  to  directions 

in  the  will  may  be  a  .  .  .  486 

executor  defendant  at  law  .  .  .  467 

and  another  person  both  claiming  to  be 
executor  of  a  creditor  of  the  bankrupt, 
order  of  the  court  thereupon  .  488 

an  executor  may  prove  a  debt  under  a  commission 

of  .  .  .  •  .  .452 

commission  of,  of  testator  superseded       .  .     ib. 

an  executor  of,  incapable  of  taking  out  a  commis- 
sion of  bankrupt  for  a  debt  clue  to  the  testator       ib. 


INDEX.  553 

Bankrupt — continued.  Page 

certificate  of,  an  executor  may  sign  .  .452 

where  bankrupt  was  petitioning  credit- 
or's executor,  chose  himself  assignee, 
and  signed  his  own  certificate  452,  453 

certificate  of,  cannot  be  signed  by  executor  as 

such,  and  also  in  his  own  right  •  .  453 

estate  of,  paying  ten  shillings  in  the  pound,  his 

executor  entitled  to  the  allowance  .  .     ib. 

Bargain  and  sale  without  enrolment  no  revocation  of  a  will      20 

Bastar.d  .  .  .  .  .  107.  386,  387 

Beds  fastened  to  the  ceiling  ....   198 

Bees  .  .  ...  148,  149.  193 

Benefice — purchase  for  a  son  of  a,  an  advancement  .  376 

Birds  .  .  .  .  .  .  .147 

Bill  of  exchange  .  .  .  235.285,286 

interest  on  ....  287 

indorsed  to  executor  .  .  .  438 

Bishop  .  .  .  .  .  .201 

probate  of  the  will  of  .  .  .53.  67 

grant  of  administration  of  the  effects  of  .94 

Bona  notabilia  .  .  51,  el  seg.  76.  94.  121,  122 

peritura  ...  96.  247.  404.  427 

Bond  .  157.216.234.252,278.281.432.437.463 

voluntary  ......  283 

payable  in  preference  to  legacies,  .     ib. 

on  an  usurious'contract  '  .  .  .  .     ib. 

ex  turfii  causa  .....  283 

joint  and  several  .  283,284 

joint  only  ......  284 

assignment  of,  by  testator         .  .  ".  .154 

bequeathed  to  a  feme  covert  .  .  .226 

delivery  of,  by  one  of  two  executors  of  obligee  in  satis- 
faction of  his  own  debt  .  .  .  360  . 
•    in  spiritual  court  by  parties  in  distribution                   .  372 
money  due  on,  taken  by  executor  not  subject  to  foreign 

attachment  •  478 

loss  of,  by  executor        .....  426 

interest  on,  not  recoverable  beyond  the  penalty  •  287 

Book-debt  .  .  ,-  ...  .     ib. 


554  INDEX, 

Book-debt — continued.  Page 

interest  on  .  ',  '.  .  287 

Borough  English  lands  not  to  be  brought  into  hotchpot    .  381 

Brewing  vessels        .  .  .  .  .  .198 

Brother         .....  88,  89, 90. 384 

of  the  half-blood  .  .  ,  .     9 1 

Caroome        .  .  ,  .    •         .  .  152 

Carrier — goods  delivered  to  .  .  .154 

Carrots  .  .  .  .  .       150.  194 

Cattle  .  .  .  .  .  .  .147 

young  of        .  .  .  .  .  .166 

Caveat  .  .  .  .-      72,73.95.123.126,127 

against  seamen's  wills  .  .  ,  .61 

Certiorari  .  .  .  ...  .264 

Chamberlain  of  London  .  .  .        202.221 

where  executor  must  give  security 
to,  to  account  upon  oath  for  an 
outstanding  debt  .  .  254 

Charity — legacy  to  .....  340 

Chattels — real  .  .  .  .  .  .139 

personal  .  .  .  .146 

changed  into  chattels  real  .  .156 

•and  vice  versa  .  .  .     ib. 

Child,  posthumous  ....        374.  390 

Children  .  .  .  ^»  .  .370 

legal  representatives  of  .        371.373 

children's  children  ....  370 

Chimney-pieces         .  .  .  .  197 

Chose  in  action  .  106.  157,  etseq.  216.  431,  ct  acq. 

Citation— of  executor  to  prove  the  will  .     43.65.93 

of  widow  or  next  of  kin  to  contest  a  nuncupative  will  59 

of  next  of  kin  to  accept  or  refuse  administration, 

or  shew  cause  why  it  should  not  be  granted  to  a 

creditor  ....         104.  122 

to  produce  an  inventory  -   .  .  .  249 

suit  by  .  .78.  129,  130,  131 

by  executor  or  administrator  of  legatees,  or  next  of 

kin,  oh  passing  his  accounts  in  the  spiritual  court    494 

Clock  cases  .  .  »  .  .  ,  •   1-98 


INDEX.  555 

Page 
Clover  -  -  -  ...  149,150 

Coat  armour  -  -  -  -  -   199 

Codicil — definition  of  -  -  -  -  -       6 

how  annexed  -  -  -  -  -     ib. 

relative  to  land  -  -  -  -  6,  7 

to  personal  estate  -  ib. 

written  -  -  -  -  -57 

nuncupative  -  -  ...       7 

how  far  it  operates  -  -     ib. 

revocation  of  will  by  -  -  -     15 

Co-executors— take  a  residue  as  joint-tenants  -   363 

power  of,  of  selling  land  -  -    ib. 

whether  it  may  or  may  not  be  exer- 
cised by  survivor  at  law,  it  shall  be 
enforced  in  equity  -  -     ib. 

action  by  445,  446 

where  an  infant  is  co-executor  -  -         446 

regarded  as  one  person  -  -  445,  446 

Co-heiresses  must  bring  advancement  out  of  personal  estate 

into  hotchpot  ...  379 

Coffin,  shroud,  &c.  -  -  -  -  155 

Collar  of  SS. -   199 

Collaterals — among,  no  representation  admitted  after  intes- 
tate's brothers'  and  sisters'  children         372.  381,  382 
College — head  and  fellows  of  -  -  -  -  201 

of  physicians,  president  of  202 

Colligendum — grant  of  letters  erf  -  -  43.107 

effect  thereof  -  -  -  107 

collecting  the  effects  by  executor  -  -  254 

person  appointed  by  court  of  equity  to  collect         408 
receiver  appointed  in  case  of  bankrupt  executor    488 
Commissary  -  -  -  -  44.  66.  74 

Commission — to  bishop  or  archbishop  in  England       -     65.94 
in  regard  to  seamen's  wills  -  -     63 

in  regard  to  administration  to  seamen  -   1 1 1 

of  appraisement  -  -  73.252,253 

of  review  -  -  -  -  -     74 

in  the  army,  purchase  for  son  of,  an  advancement  377 
Commons  -  -  -  -  -  -  139 

2h 


556 


INDEX. 


Page 


Condition — interest  vested  in  executor  by 

.   164 

Consanguinity — lineal 

.     87 

how  Calculated              .              87 

88.   382 

collateral                .                    ; 

.     88 

how  calculated                 .             89 

,  90.  382 

Contingent  interests             .... 

212,  213 

Contribution-money 

.   221 

Conversion  of  assets  into  the  3  per  cents. 

.  319 

Coppers                   . 

197,  198 

Copy — of  will 

.     71 

of  probate 

77,  78 

of  ledger-book                .                   ... 

.     78 

Copyhold 

.  215 

devise  of                    ... 

.     32 

fine  for  admittance  to  a 

.  436 

for  lives 

179, 180 

mortgage  of                                  . 

186,  187 

rents,  executor  cannot  distrain  for 

.   452 

Copyholder,  lease  granted  by 

.    180 

Corn  growing               150.  159.  194.  203,  204,  205,206. 

218,  219 

Cornage — tenure  by 

.    191 

Corodies                  .... 

.    139 

Corporation — aggregate 

33.  201 

sole                      .                   .                  33. 

201,202 

Costs— in  what  actisns  executor  plaintiff  at  law  shall  not  pay  439 
when  not  on  a  writ  of  error  .  .  .    ib. 

not  generally  on  a  discontinuance  .       440,  441 

nor  for  not  proceeding  to  trial  according  to  notice       ib. 
nor  on  a  judgment  as  in  case  of  a  nonsuit  .  440 

in  what  actions  executor  plaintiff  at  law  shall  pay  439,  440 

when  on  a  writ  of  error  .  •  440 

• 

on  a  judgment  of  non-pros  *          .                 •  ?&• 

when  on  a  discontinuance               :                 •            •  ib. 

when  for  not  proceeding  to  trial  according  to  notice  ib. 

effect   of  defendant's   paying  money  into  court  in  an 

action  by  an  executor  in   regard  to  tbe  costs             .  ib. 

executor  or  administrator  of  an  attorney  need  not  de- 
liver a  bill  of,  before  commencing  an  action  for         .  441- 
the  bill  in  that  case  not  taxed  in  C.  B.                       .  ib. 


INDEX. 


557 


Costs — in  what  actions  executor  shall  pay — continued.         Page 
the  hill  in  that  case  may  he  taxed  in  B.  R.  .  441 

on  ahove  a  sixth  part  of  such  hill  being  taken 
off,  executor  not  liahle  to  the  costs  .     ib. 

defendant  executor  when  liahle  to,  at  law      .       467,  468 
•  when  not  .  .  .  46S 

when  bankrupt  executor,  defend- 
ant not  discharged  hy  his  certi- 
ficate from  .  .     ib. 
when  liable  to  in  ecpiity  .  483 
when  not           .                 .  .     ib, 
executor  entitled  to,  in  the  spiritual  court  .  496 
when  party  praying  an  account  in  that  court  liable  to     ib, 
Covenant                  .                    .                    .                .278.  284,  285 
executor  entitled  to  the  benefit  of                    .  .168 
to  perform  a  personal  thing            .                158.  432.  437 
touching  the  realty                            .                158.  163.  432 
to  lay  money  out  in  land                  .                   8.   181.  392 
on  marriage  to  settle  land                .                 .      418,  419 
by  mortgagor  to  pay  the  mortgage  money  .   185 
where  legacy  shall  be  in  satisfaction  of                      .   338 
interest  on  demands  arising  from                 .         286,  287 
Court — baron          .                   .                ■    .                 .           50.  80 
mayor's        .                   .                   .                 .  .     50 
bishop's        .                    .                    .                  .             .     51 
prerogative                     .                   ...     ib. 
of  great  sessions  in  Scotland           .                 .            .71 
spiritual  in  Ireland                            .                 .            .     ib. 
in  the  East  or  West  Indies              .  .     ib. 
of  the  arch-deacon.        .                   .                 .          73,  74 
of  arches                          .                   .                 .          74,  75 
of  delegates                    .                   .                 .  ib. 
of  pie  fioudre                  .                     ...  264 
of  conscience                 .                   .                  .       436.  466 
of  orphanage  in  the  city  of  London                .             .  254 
in  cities  or  towns  corporate  having  power  by  charter 

or  prescription  to  hold  plea  of  debt  .  .  263 

temporal,  to  judge  of  the  sufficiency  of  cause  of  re- 
pealing letters  of  administration  .  .   123 
•  proctor's  fees  to  be  sued  for  in  the  temporal  .  497 


558  INDEX. 

Page 

Cousin  german  .  s  .  .     89 

second  .  ...     ib. 

Creditor  .  .  104.  1 13.  122.  129.  192. 416 

several  applying  for  administration  .  .   106 

in  respect  to,  several  administrators  regarded  as  one 

person  .  .  .        106,  107 

marshalling  assets  in  favour  of  .  .  417 

Cucumbers  .  .  .  .   150 

Cumulative  legacies-  .  ...  334 

Curtesy — tenant  by  the  .  .  .  206 

Custom — in  regard  to  probate  of  wills  .  .     50 

heir-looms  by  .  .  200 

for  corporation  sole  to  take  goods  and  chattels  in 

succession  .  .  .  202 

of  London  .  ...  373 

distribution  by  .  388,  et  seg. 

in  regard  to  widow's  jewels         .  .230 

in  regard  to  simple  contract  debts  .  282 

where  a  freeman  dies  leaving  an  orphan 
within  age- and  unmarried,  in  regard  to 
an  inventory  and  account  .  .  254 

in  regard  to  apprentices  when  the  master  dies  470 
foreign  attachment,  executors  and  adminis- 
trators  within   the   custom   of,   in    what 
cases,  in  what  not  .  .  .  478 

.  373 
.400 
.  403 
.    198- 


of  York 

distribution  by 
of  Wales 
Cyder-mill 


Damages  .  .  ...  284 

recovered  by  an  executor  not  subject  to  foreign  at- 
tachment .  .  478, 479 
Daughter  of  an  aunt                 .                   .                 .  .385 
Dead  man's  part                       .                    .                 ...  389 
Dean  and  chapter                     .                    .                    67.  94.  201 
Debts — executor  how  far  liable  for            .                 .       459.  463 
payment  of  by  executor                  .                 .         47.  258 
in  what  order'                .      258.  262 


INDEX.  559 

Debts — payment  of,  by  executor — continued.  Page 

consequence  of  his  not  paying 
them  in  order  -  -  258 

clue  to  the  crown  by  record  -  -        259,  260 

by  specialty  -  -  259 

other  due  to  the  crown  -  260 

assigned  to  the  king    -  -  261 

certain  by  statute  ...         261,262 

of  record  in  general         ...         262.  459 
judgments  as  distinguished  from  statutes  and  re- 
cognizances .-  .  -  262.  459 
judgment  against  executor             -             265,  266,  267 
writ  of  error  by  executor  on  judgment     -        267,268 
effect  thereof           -            -  -  268 
decree  in  equity                  -            -            269,270,271 
executor  protected  in  his  obedience  thereto,  270,  27 1 
recognizance          -                                        271,272.459 
statute  merchant                -            V             272,273.459 
statute  staple                 -             -             -             273.  459 
recognizance  in  the  nature  of  a  statute  staple  274, 275 


statute  and  recognizance  not  yet  due 

- 

-  275 

contingent 

- 

-  276 

joint  and  sevei 

•al 

-  277 

joint  only 

- 

-     ib. 

recognizance  not  enrolled 

- 

-     ib. 

statute  not  regularly  tak'en 

- 

-     ib. 

other  inferior  of  record 

- 

278.  459 

by  specialty             ... 

- 

278.  281 

rent            - ; 

- 

278,  et  sea. 

by  specialty  payable  at  a  future  day 

- 

-  281 

contingent 

•282.  321,  322 

voluntary  bond                    -             - 

- 

-  283 

bond  on  an  usurious  contract 

- 

283.  426 

ex  turpi  causa 

- 

-  .283 

joint  and  several 

- 

-     ib. 

covenant 

- 

284,  285 

articles  of  agreement 

- 

ib. 

simple  contract 

- 

285,  286 

interest  of 

.   286 

barred  by  stat.  of  limitations  not  revived  by 

the  will  288 

50 

560  INDEX, 

Debts — continued.  Page 

payment  out  of  their  legal  order  258.  424 

creditor's  gaining  priority  by  legal  process  .  288 

by  equitable  process  289,  290 

executor's  power  of  preferring  one  creditor  of  equal 

degree  to  another         .  .  .  289,  ct  seq. 

not  controlled  in  the  exercise  of  it  in  equity     .  291 

his  right  of  giving  such  preference  not  divested 

by  a  mere  demand         ....     ib. 

how  bound   in  conscience  to  pay,  of  equal  de- 
gree .  .  .  291,292 
may  pay  an  inferior  debt  before  a  superior  of  which 
he  has  no  notice,  after  a  reasonable  time         292,  293 
not  if  he  has  notice                 .             .  .  293 
executor  paying  a,  out  of  his  own  purse              2G8, 239 
has  the  same  equity  as  a  creditor 
against  legatees             •             .  342 
if  executor  compound  he  shall  not  have  the  benefit 
of                .             .             .             .             .             .481 

appearing  after  the  payment  of  legacies  .  342 

due  to  executor  .  .  .  238, 239 

may  be  retained  by  him  .  .  .  295 

in  what  cases  .         295,  et  seq. 

on  what  principle         .  .  295- 

retainer  for,  by  husband  of  executrix  .  .  359 

when  the  deb't  was  due  to  him,  or  to  the 
wife  before  marriage  .  .     ib. 

shall  not  retain  in  prejudice  of  his  co-executor  361 
devise  of  lands  for  payment  of  .  411.  418 

when  lands  shall  be  assets  only  for  the  pay- 
ment of  .  .  .  .  .416 

payment  of,  by  executor  without  notice  of  the  revo- 
cation of  the  will  ...  78,  79 
payment  of,  by  limited  administrator            .  .  404 
retainer  for,  by  limited  administrator             .              .405 
payment  of,  by  administrator  under  a  void  adminis- 
tration                .                .               .             .             .132 

when  a  legacy  is  in  satisfaction  of  a,  when  not    336.  338 
action  of,  on  a  judgment  of  assets  quando  accidcrinl 
suggesting  a  devastavit  .  .  .  470 


INDEX.  561 

Debts — continued.  Page 

executor  de  son  tort  as  against  creditors  may  pay       .  364 
as  against  the  rightful  represen- 
tative cannot  plead  payment  of  365 
on  general  issue  may  give  in  evi- 
dence such  payment  in  what 
cases  .  •  •     io. 

effect  thereof  .     ib. 

when  it  is  of  no  avail  366 
in  general  cannot  retain  .     ib. 

under  the  statute  may  ib. 

collectors  of,  where  appointed  by  court  of  equity         .  408 
due  to  the  testator  separate  .  .  •  248 

doubtful  .  .  •  .>     ib. 

desperate  .  .  .     ib. 

bona  notabilia  .  .  54.  56 

by  specialty,  or  simple  contract, 
how  distinguished         .  .     55 

payment  of,  to  executor,  what  shall  be  .  .  425 

under  a  forged  will  76,  77 

under  probate  of  a    supposed 
will  of  a  living  person  .     77 

.    to  administrator,  under  a  void  adminis- 
tration .  .  ■  .130 
where  an  executor  delays  the  receipt  of        .          425,  426 
executor  may  call  in  a,  though  bearing  interest,  in 

what  case  .  •  •  •  •  428 

where  executor  compounds  or  releases  47.  481,  482 

release  of  by  one  of  several  co-executors  359,  360 

receipt  of,  by  limited  administrator  .  404 

release  of,  by  limited  administrator  .  406 

by  one  of  joint  administrators  .  .   408 

executor's  assent  to  a  release  by  will  of  .  .  308 

due  from  executor  when  regarded  us  a  specific  bequest 

to  him  .  •  •  •  •  ■  35° 

where  not  .  .  ■  349,  350 

due  from  executor  durante   minorilate    .  350,  351 

from  husband  of  executrix  .  •  •   359 

where  one  of  several  executors  is  indebted  to  testator, 


562  INDEX. 

Debts — continued.  Page 

and  dies,  the  surviving  executors  cannot  sue  his  re- 
presentatives for  the  .  .  .  348 
action  of  by  executor  for  arrears  of  rent            .  .  450 
by  tenant  fiur  auter  vie,  his  executors  and  ad- 
ministrators, after  the  death  of   cestui   que 
■vie,  for  arrears  incurred  in  his  lifetime  .     ib. 
in  what  cases  executor  at  common  law  may 

have  an  action  of,  for  arrears  of  rent  .  451 

by   an    executor   suggesting    a    devastavit    in 
the  lifetime  of  his    testator  on  a  judgment 
recovered  by  such  testator  against  an  exe- 
cutor .  .  .  432.  473 
executor  a  creditor  may  sue  his  co-executors  .  298 

or  the  heir,  where  the 
hejr  is  bound  ib. 

executor  may  prove  a,  under  a  commission  of  bankrupt  452 
due  from  executor  in  his  private  character  not  pay- 
able out  of  the  assets  .  .  t  .         134,135 
due  to  the  wife  before  marriage           .             .  .   1.22 
Debtor — executor's  interest  in  the  person  of          .             .151 
administration  granted  to               .               .              .128 
Deceit — action  of,  by  executor         .             .              159.435,436 
Decree — inequity         ....         269,270,271 
in  the  administration  of  assets  ecpaivalent  to  a  judg- 
ment at  law                            «    .               .             270.  290 
notice  thereof             .....  270 
merely  to  account               .                 .             .  .271 
analogous    to    judgment  quod   computet  in- 
terlocutory judgment  at  law          271.  290,  291 
cannot  be  pleaded,  or  given  in  evidence  at  law      •  .  270 
■yet  executor  shall   be   protected   in  his   obedience 
thereto  '"                           .              .              .              270.  29U 
Deeds- — writings  and  securities  relative  to  personal  estate  154. 

254,255 
relative  to  land  191.  192 

to  land  sold   on  con- 
dition .     ib. 
Deer                 .              .              .              .                144,    147.    149.    192 
Delegates— court  of                                                    ,  .     74 


INDEX.  #  563 

Page 
Detinue — action  of,  by  executor  ....  434 
Devastavit— by  acts  of  abuse  246.  268.  283.  307.  341.  344 

of  negligence  .  ;         426,  et  seq. 

effect  of  .  463,  469 

what  shall  not  amount  to  267,  268,  269.  428,  429 

by  one  of  several  co-executors  .  430.  472 

by  husband  where  executrix  marries  after  testa- 
tor's death  .  .  358,  359.  430.  471 
by  executrix  before  marriage  .  359.430 
by  executrix's  marrying  testator's  debtor  359 
executor  of  executor  answerable  for,  by  the  latter 

430.  473 
executor  de  son  tort  chargeable  for  .  .  474 

executor  of  executor  de  son  tort  chargeable  for  the, 

of  the  latter         .  .  .  •     ib. 

executor  de  son  tort  of  executor  de  son  tort  not  for 
"•   ■  the,  of  the  latter  ....     ib. 

administrator  durante  minoritate  liable  for,  to  the 
executor  on  his  coming  of  age  .  .  475 

not  after  that  period  to  a  creditor  .  ib. 

executor  may  be  held  to  bail  in  case  of        .  .  467 

may  be  proved  under  commission  of  bankrupt  ex- 
ecutor .  .  .  .  .  429 
return  of,  by  the  sheriff               *                 .             -  467 
Devise — of  lands  to  be  sold            .              .             .  .412 
by  a  person  not  executor              .     ib> 
by  executor  in  conjunction  with 

other  persons  .  .     ib. 

by  an  executor  for  payment   of 
debts  and  legacies      •  .  .413 

Devisee — where  lands  are  devised  by  tenant  in  fee-simple  .411 
of  estate  per  auter  vie  .  .  ..  .     ib. 

of  copyhold         ...  .  .        411,412 

of  land,  what  chattels  go  to  .  .  .  203 

entitled  to  emblements         . .       .    .  .     ib. 

of  personal  estate  entitled  to  emblements  in  prefer- 
ence to,  of  land  .  204 
specialty  creditor  may  resort  against  heir,  and  with- 
out suing  executor  of  the  debtor              .             •  411 


564  a  INDEX, 

Page 
Disseisor — of  tenant  for  life  ....  206 

Distress — goods  taken  by  .  .  .  .154 

executor's  right  of,  in  what  cases  .         450,  et  seq. 

of  executor  of  executor  .  452 

for  rent  against  executor  of  tenant  for  life,  or  for 
years  .  .  476 

Distribution — of  deceased's  effects  in  pious  uses         .      81.  107 
spiritual  court  formerly  attempted  to  enforce  369  . 
under  the  statute         ....     ib. 
purview  thereof        .  .  .  370 

provisions  of  the  same       .  370,  373* 

when  to  be  made  .  .  372 

where  intestate  lcftwife  and  children, 
or  representatives  of  children    373,  374 
where  intestate  left  one  child  374 

where  some  of  the  intestate's  child- 
ren, are  living,  and   some  dead, 
each  of  whom  has  left  children        375 
advancement  within  the  statute  376 

of  bringing  into  hotchpot  .     ib- 

what  shall  not  be  such  advancement  380 
borough  english  lands  descended 
not  .  .  .381 

where  widow  and  no  children,  nor  le- 
gal representatives  of  children  381,  382 
where  children,  and  no  widow         .   382 
where  neither  widow  nor  children        ib. 
among  next  of  kin  .  ib. 

where  any  of  the  children  die  in- 
testate without  wife  or  issue, 
leaving  a  father  .  ,     ib. 

where  any  of  the  children  die  in- 
testate without  wife  or  children, 
leaving  a  mother  .  .     ib, 

where  a  child  dies  intestate  and 
without  issue,  leaving  a  wife, 
brothers,  and  sisters,  or  child- 
ren of  a  deceased  brother  or 
sister,  and  a  mother  .  383 

where  a  child  dies  intestate  and 


INDEX.  565 

Distribution — under  the  statute — continued.  Page 

among  next  of  kin— continued. 
without    issue,    leaving   neither 
brother  nor  sister,  nor  children 
of  a  brother  or  sister,  but  leaving 
a  mother  .  .  .  383 

how  far  representation  among  col- 
laterals is  admitted  382,  383 
where  there  are  grandfather  and 

brother  .  .  .  284 

where   there    are  grandfather  and 

uncle  .  .  .     ib, 

where  there  are  grandfather  by  the 
father's  side  and  grandmother  by 
the  mother's  .  .385 

where    there   are   uncles   and   ne- 
phews, aunts  and  nieces  ib, 
where  grand -daughter  of  a  sister, 

and  daughter  of  an  aunt  ib, 

distributive    share  vested    on    the 

death  of  the  intestate  .  386 

statute  in  the  nature  of  a  legislative 
will  ....     ib. 

affinity,  except  in  the  case  of  wife,  no  title  to  a    ib, 
of  the  effects  of  a  bastard  intestate,  without 

wife  or  child  .  .  386,  387 

according  to  the  law  of  the  country  where  in- 
testate was  resident  .  .  •  387 
may  be  enforced  in  equity                 .  ;  480 
in  the  spiritual  court      489.  495 
by  the  custom  of  London                 .  .  388 
where  widow  and  children             .         389,  390 
where  only  widow  or  only  children  389,  390,  391 
where  neither  widow,  nor  child,  nor  repre- 
sentative of  a  child               .                389,391 
of  dead  man's  part              .             .             .389 
posthumous  child  entitled  to              .  390 
grand-children  not               .              .         390,  39 1 
custom  attaches,  though  freeman  neither 
resided,  nor  died,  nor  left  effects  within 
the  city        .                .                .              391,402 
• 


566  INDEX. 

Distribution — by  tbc  custom  of  London — continued.  Page 

children  entitled  to,  though  born  out  of  the 

city  .  *    -  .  .  394 

widow's  chamber  .  .  389,391 

when  barred  of  her  customary  share  392 

where  the  orphanage  share  vests,  when  not     393 

when  it  survives  .  .  .     ib. 

when  not  ....     ib. 

orphanage   part  where  there  is  only  one 

child  .  .  .  .  .     ib. 

advancement  by  the  custom  .  .394 

bringing  the  same  into  hotchpot  .         ib. 

in  what  cases,  and  how  brought  in  395 

where  advaucement  exceeds  the  share  by 
the  custom  .  .  .  .     ib. 

nature  of  such  advancement,  complete, 
or  partial  .  .  •  396 

must  arise  from  personal  estate 

ouly  •        .  .     ib. 

evidence  of  the  same        .  .   397 

different  cases  of  advancement        398 
nature  of  the  interest  in  an  orphanage  part    399 
how  claim  to  the  same  may  be  waived  399,  400 
release    thereof   by    husband  of  freeman's 
daughter    an    infant,  on  his    covenaut  to 
release  .  .  .  399 

effect  thereof  .  399,  400 

mortgage  of  an  inheritance  to  a  citizen  de- 
visable according  to  the  custom  .   187 
by  the  custom  of  York             .                   *  .  400 
widow's  chambers  and  ornaments             400,  401 
when  child's  filial  portion  is  vested  .401 
advancement  by  the  custom     .                         .     ib. 
may  arise  out  of  the  real  estate                   .     ib. 
heir  at  common   law  inheriting  land  in  fee 

or  in  tail  can  claim  no  filial  portion  .     ib. 

where  intestate  leaves   a   widow   and  three 

sons  ....  403 

such  custom  does  not  attach  where  intestate 
not  resident  in  the  province  at  his  death     402 


INDEX.  567 

Distribution — by  the  custom  of  York— -vontinued.  Page 

in  respect  of  such  custom,  immaterial  where 

his  estate  is  situated  .  .402 

where  custom  of  London  shall  controul  that 
of  .....     ib, 

customs  of  London  and  York  in  the  main  agree 

402,  403 
by  the  custom  of  Wales  .  .  '.403 

Distringas— nu/ier  vice  comitem  sued  out  by  administrator 

de  bonis  non  ....  449 

Divorce  for  adultery  a  mensd  et  thoro,  how  it  operates  in  re- 
gard to  the  custom  of  London  .  393 
Dogs              .             .             .             .             .             .  -148 

Domicil  of  intestate 

Donatio  mortis  causa,  definition  of 

what  shall  constitute 
what  not 

incapable  of  being  bills  of  exchange  .  235 
promissory  notes  .  ib. 
checks  on  bankers  .  ib. 
simple  contract  debts  236 
arrears  of  rent  .     ib. 

query  whether  money  due  on  mortgage 

can  be  the  subject  of  .     ib. 

not  proved  with  the  will  .     ib. 

executor's  assent  to  unnecessary     .     ib. 

not  good  against  creditors        .       .  237 

Doors 

Dower,  tenant  in 

executor  of 
Duty  on  legacies 


.387 

.  233 
233.  237 
235,  236 


.    197 

.  217 

205.  207 

.   329 


Ecclesiastical  court — remedies  against  executor  and  admi- 
nistrator in  .  .  489,  et  seq. 
what  evidence  shall  be  admitted  in        .  494 
in  what  cases  it  has  concurrent  jurisdic- 
tion with  the  court  of  chancery  .  489 
in  what  not                         .              .  •  590 
cannot  compel  debtor  of  intestate  to  pay 
his  debt  into  court                    .              .  49 1 
51 


568  INDEX. 

Ecclesiastical  court — continued.  Page 

bond  taken  for  a  legacy  cannot  be  en- 
forced in  .  .  .491 
proctor's  fees  cannot  be  sued  for  in       497 
Education — money  expended  for  a  child's,  no  advancement 

380.  496 
Ejectment,  action  of — by  executor  .  .     158.  234 

for  an  ouster  of  the  testator,  though 

seised  in  fee  .  .  .  434 

by  husband  for  his  wife's  term  .215 

Election — when  executor  may  claim  by,  when  not         174,  175 

how  a  specific  chattel  may  become  an  executor's 

own  by  .....  238 

Elegit — estate  by  .  139.212 

will  lie  against  an  executor  on  a  devastavit  returned  470 

Emblements—  149,  150.  194.  203,  204,205.  208.  218,  219 

advantage  of,  extended  to  the  parochial  clergy  208 

Entry — power  of,  descends  to  the  heir  .  .180 

Equity — remedies  for  executors  and  administrators  in  454  etseq. 

•against  executors  and  administrators  in 

479,  etseq.  489,  490 
executor  cannot  plead  decree  in,  yet  is  protected  in 

his  obedience  thereto  .  .         270,271.290 

will  not  interpose  in  favour  of  one  creditor,  where 

executor  has  confessed  judgment  to  another  291 

in  what  case  will  not  compel  a  creditor,  suing  both 

at  law  and  in  equity,  to  make  his  election  29  1 

executor  may  retain  for  his  debt  both  at  law  and  in    29S 
will  not  suffer  him  to  pervert  such  privilege  to  the 

purposes  of  fraud  ...  .     ib, 

where  a  creditor  has  more  than  one  fund  to  resort 

to,  and  another  only  one,  what  will  require  .  420 

will  not  compel  the  executor  to  plead  the  statute  of 

limitations  at  law  in  favour  of  the  residuary  legatee  345 
executor  paying  a  debt  out  of  his  own  purse  has  the 
same,  as  a  creditor  against  legatees  .  .    342 

'  executor  trustee   for  a  legatee   in,  and  in  certain 

cases  for  the  next  of  kin  351.  355.361.363.  479, 

480.  490,  491 
administrator  a  trustee  in,  for  the  parties  in  distri- 
bution ...  •  480 


INDEX.  '  ' 

Equity — continued.  '  a&'c 

surviving  partner  in  trade  trustee  in,  foi  the  repre- 
sentatives of  the  deceased  .  .        454,45  5 
legacy  payable  at  a  future  time,  or  annuity,  may  be 

secured  in  .  •  •  •  4S~ 

will  secure  the  assets  in  case  the  executor  becomes 

bankrupt  .  488 

where  executor's  power  of  dividing  a  legacy  is  con- 
trolled in  .   .  •  •  3*9 
where  not                       .             •             •  320 
will  compel  a  legatee  to  refund           .              .  322 
creditors  and  legatees  entitled  to  what,  where  mort- 
gage has  been  paid  out  of  the  personal  estate          285 
will  compel  surviving  or  mediate  executor  to  exe- 
cute a  power  of  selling  land             .             •       363,  364 
where  the  interest  of  husband   and  wife  arc  treated 

as  distinct  in  .  .  .  .       225,226 

where  wife  is  entitled  to  gifts  to  her  separate  use  in 

225,226,227 
where  not  .  228 

where  wife  entitled  to  gifts  from  husband  in  227 

where  not  .  .  •  .        227,  228 

where  husband  shall  be  trustee  for  wife  in  226 

where  wife  mortgagee  in  fee  is  a  trustee  in  223 

will  not  decree  payment  of  wife's  legacy  to  husband 
without  a  settlement  .  .  •  32  1 

or  unless  wife  consent  in  court  .  ib. 

w  hen  wife's  next  of  kin  trustees  for  husband's  repre- 
sentatives in  .  .  •  •       116.2  17 
when  husband's   representatives   entitled  to  wife's 
choses  in  action  in               ...  222 
how  far  to  wife's  fortune  in  chancery          .  223 
money  covenanted  to  be  laid  out  in  land,  has  in,  all 

the  qualities  of  land  .  .  392 

release  of  orphanage  part  for  valuable  consideration 

binding  in  ....        399,  400 

of  redemption  ....        184.218^ 

foreclosure  of  .  .        18  5.  187 

release  of  .  185 

1  redemption  of  mortgage  in  fee  ■  415 


570  INDEX. 

Equity- — continued.  Page 

whether  legal  or  equitable  assets  .  415 

cf  redemption  of  a  mortgage  for  a  term  of  years 

415,416 
whether  legal  or  equitable  assets  .  ib. 

Error,  writ  of — by  executor  .  .  267,  268.  435 

query  whether  it  lies  to  reverse  testator's 

attainder  of  high  treason  .  435 

costs  on  .  .  .       439,  440 

Escape,  action  for — by  executor  159.  161.  435.  437,  438 

•  against  sheriff's  executor  .  459 

Estovers  .  .  .  .  .  139 

Estray  ......       210.221 

produce  of  sale  of,  within  the  king's  manors  or  li- 
berties ....  260 

Evidence — in  regard  to  a  legacy  .  .  315 

in  regard  to  cumulative  legacies  334,  335,  336 

parol,  in  regard  to  residue  undisposed  of  355 

of  advancement  by  the  custom  of  London  397 

Excommunication  .  .  .  .  41.  65 

Excommunicated  persons  .  .  12.  33.  103 

Execution — where  land  and  damages,  or  a  deed  relative  to 

land  and  damages,  are  recovered         .  20 1 

where  on  a  judgment  recovered  by  two  execu- 
tors, they  pray  different  writs  of         .  447 
after  executor  is  come  of  age,  on  a  judgment  ob- 
tained by  administrator  durante  minoritate  447,448 
if  executor  or  administrator  die  after  suing  out, 
but  before  the  return  of  it,  administrator  de 
bonis  non  may  perfect  the  same                  448,  449 
where  defendant  dies  before  judgment  is  signed 

266.  470 

how  tested  .  .  .  266 

on  a  statute         ....  277 

taken  out  on  a  statute,  a  judgment  remaining 

unsatisfied  .  .  .  268 

wife's  term  may  be  taken  in,  for  husband's  debt  213 
not  after  his  death  in  case  the  wife  survive  215 
testator's  effects  cannot  be  taken  in,  for  execu- 
tor's debt  .  .  .       134,  135 


INDEX.  571 

Execution — continued.  Paee 

unless  he  convert  them  to  his  own  use       .   135 

or  consented  to  the  seizure       .  .     ib. 

Executor — definition  of  .  .  .33 

derives  his  authority  from  the  will  33.46.  75.95.  101 

who  may  be  .  .  .33 

the  king  .  .     ib, 

corporation  aggregate  .     ib. 

sole  .  .     ib. 

infant         .  .  .34 

where  one  executor  is  an  infant  and 

his  co-executor  not  .   102 

child  or  children  in  ventre sa  mere  .     34 
I 

feme  covert  with  husband's  consent  .  ib. 

although  she  be  an  infant          .  ib. 

alien  friend                     .                     .  ib. 

outlaw                             .                     .  ib. 

person  attainted             .                      .  ib. 

villain  .  .35 

party  insolvent              .                  35.  341 

what  Roman  catholics                      .  35 

who  not                         .                     .                     ,  ib, 

party  excommunicated  till  absolution  .  ib. 

what  papists                          .                      .  ib. 

denier  for  the  second  time  of  the  Holy 

Trinity                                .                      .  36 

of  the  Scriptures         .                     .  ib. 
persons  not  having  cpualified  for  offices  36,  37 
alien  enemy     .                     .                     .36 
British  artificers  going  out  of  the  realm 

to  exercise  or  teach    their   trades 

abroad,  or  so  trading,  who  shall  not 

return    within    six    months    after 

warning                           .                      .  ib. 

persons  under  mental  disability               .  37 

idiocy         .                      .                      .  ib. 

insanity                            .                      .  ib. 

age             .                     .                     .  ib. 

disease       .                      .                      .  ib. 

intemperance                 .                     ,  ib. 


572  INDEX. 

Executor — who  not — continued.  Page 

persons  having  been  born  blind  and  deaf  -     37 

appointment  of        -  -  -     ib. 

express  -  -     32 

implied  -  -     ib. 

absolute  -  -     ib. 

qualified  38.  100.  350,  351 

of  joint  executors  -     39 

considered  as  one  person     39. 

243.  359 

office  of  not  assignable  -     43 

may  be  refused,  and  how         43,  44.  93.  348 

refusal  of,  by  a  bishop  -     44 

refusal  of,  in  person  -  -     ib. 

oath  thereupon      -  -     ib. 

refusal  of,  by  proxy  -     ib. 

must  be  entire  44.  143.  279 

effect  of         -  -  44.  348 

when  refusal  may  be  retracted,  when  not  44. 

93 

acceptance  of  the  office  of  -     44 

effect  thereof  -  -     ib. 

what  acts  are  an  acceptance  44,  45 

What  not       -  -  -     46 

administering  an  act  in  pais  1 15,  116 

refusal  of  the  office  by  several  co-executors  46.  93 

by  some  and  not  by  others       -     46 

effect  thereof         46.  69.  351.  446 

by  surviving  executor      46.  69.  93. 

1  1 8.  1 20 
death  of,  intestate  1 14,  1 15.  135 

executor  of  -  -  -   1 18 

refusal  by  -  -     46 

minority  of  -  -   1 19 

executor  of  deceased  co-executor  -   118 

executor  of  surviving  co-executor  -     69 

surviving  co-executor  dying  intestate  69.  118,  119 
not  ascertained         -  -  -  120 

concealed  -  ib. 

abroad  -  -  =     ib. 


index,  573 

Executor — continued.  Pae;e 

of  a  person  domiciled  in  a  foreign  country  -  457 

factor  of  goods  appointed  by  principal  -     ib, 

becoming  bankrupt        -  .      ,  120.134 

being  attainted  -  „  -   134 

interest  of,  in  the  property  -     133,  et  seq.  48 8 

his  constructive  possession  thereof        152,  153 
of  executrix  not    transferred  by  her  mar- 
riage -  -  -   13G 
order  in  which  the  different  species  of  such 
property  are  treated            -                 137.138 
interest  of,  in  chattels  real                  -                     -   139 
what  so  denominated           -            139,^*^, 
when  they  relate    to  incorporeal   here- 
ditaments                         .                 145)  146 
entry  of,  on  corporeal  hereditaments  necessary     -  145 
possession  of,  of  incorporeal  hereditaments  con- 
structive                      .                     .                 145,146 
in  chattels  personal          -                     -   146 
animate            -                     .  147 
vegetable         -                     -149 
corn     and     other     emble- 
ments          149,  150.  194.  204. 
208 
trees                 -                     .195 
inanimate       150,  151.  198.  200. 

211 
in  property   in   the   public 

funds  -  -151 

in     the     avoidance    of    a 

church  -     •  -     ib. 

in  the  person  of  a  debtor     -     ib, 
in  a  prisoner     -  -     ib, 

in  a  negro  servant  -     ib. 

in  an  apprentice  -   152 

in  literary  property  -     ib, 

in    a  patent  for   an   inven- 
tion -  -     ib. 
in  a  share    under  the   sta 
tute  of  distributions  -  386 


574  INDEX. 

Executor — possession  of,  in  chattels — continued.  Page 

in  a  caroome  -   152 

allowance  to  bankrupt  survives  to  his  -     43 

when  the  interest  in  the  property  is  vested  in  1 52.  386 
when  not     -  -  154 

interest  of,  in  deeds  and  writings  relative  to  per- 
sonal estate  ...     ?£. 
when  in  writings  relative  to  land         -   192 
interest  of,  in  the  coffin,  &x.  -  -   155 
in  chattels  personal  changed  in  his  hands 

into  chattels  real  and  vice  versa  -  156 

of  executor  of  deceased  tenant  in  com- 
mon -  -  -   155 
of  deceased  partner  in  trade 
or  husbandry                       -   155 
interest  of,  in  choses  in  action  where  the  cause 
of  action  accrued  before  the  testator's  death 

157,  etseq. 
in  equitable  claims  subsisting  before  -  160 
in  choses  in   action,  when  the  cause  of 

action  accrued  after 
in  equitable  claims  arising  after 
by  condition 
in  things  in  pledge 
by  remainder 

or  increase  «■ 

in  a  trade 
by  assignment 

by  limitations  of  chattels  real 
of  legacies 
of  interest  arising 
land  as  portions 
by  election 
right  of,  to  rent  in  what  cases 

to  arrears  of  a  720 mine  ji cense 

to  bond  for  owelty  of  partition 

to  money  covenanted    or    agreed  to  be 

laid  out  in  land  -  -     ib. 

to  mortgages  -  140,  etseq. 

to  tithes  set  out  in  testator's  lifetime     -  183 


- 

ib. 

- 

161 

- 

164 

164 

.257 

- 

165 

- 

166 

166. 

,  167. 

487 

- 

167 

- 

170 

171, 

172 

g  out  of 

172, 

173 

- 

174 

- 

179 

- 

178 

180, 

181 

INDEX.  575 

Executor — continued.  Page 

how  effects  he  takes  as  such  may  become  his  own      238 

when  he  gains  a  settlement  .  .  .146 

interest  of  married  woman  executrix       .         241,  et  seq. 

of  joint  executors     ....  243 

in  case  of  death   vests .  in 

survivor  .  .     ib. 

of  limited  executors         .  .  .  354 

of  executor  of  .  .  69.  243 

of  executor  of  surviving  co-executor    .         .  69 

the  burial  of  the  deceased  by  ...  .  245 

the  making  of  an  inventory  by  247 

may  sell  perishable  articles   before  njaking   an 

inventory  .  .  .  .  .     ib. 

the  collecting  of  the  effects  by  .         164.  254,  ct  seq. 

powers  of,  for  that  purpose  .  46.  254,  255 

the    registering  of  probate   at   the   bank  by,  and 

transfer  of  stock  .  .  .  255, 256 

sale  of  the  effects  by  256,  257 

mortgage  of  term  of  years  by  256 

assignment  of  mortgaged  terms  by  .  .     ib.' 

of  term  in  trust  to  attend  the  inherit- 
ance by  .  .  .  427 
recovering  the  property  by,  by  action  or  suit  .     ib. 
redeeming  pledges  by           .              .              164,  165.  257 
carrying  on  trade  by           .              166.  480.  486,  487,  488 
disposal  of  testator's  stock  in  trade  by         .              .  487 
where  he  shall  present  to  a  church               .             .190 
payment  of  debts  by                  .               .              258,  et  seq. 
may  retain  his  own  debt               .              .              .  295 
compounding  debts  due  from  the  testator             .  481 
paying  such  debt  out  of  his  own  purse             342.  449 
where  he  so  pays  an  inferior  debt  before  a  superi- 
or debt               .....  429 
where  he  delays  payment  of  a   debt  due  from 

testator  .  .  .  .  .426 

not  bound  to  plead  the  statute  of  limitations       .  343 
compounding  or  releasing  debts  due  to  the  testator 

.481,482 
52 


570  INDEX. 

Executor — continued.  Page 

how  far  liable  where  he  gives  a  receipt  for  part  of 
a  debt  ....  428,  429 

where  he  compounds  an  action  of 
trover  for  testator's  goods  by  tak- 
ing a  bond  payable  at  a  future  day  429 
where   he   takes  a  bond  in  his  own 
name  for  a  debt  due  to  the  testa- 
tor .  .  .  .425 
release  of  a  chose  in  action  by              .                   424,  425 
where  he  delays  bringing  an   action  so   as  not  to 

save  the  statute  of  limitations  .  426,  427 

executor  and  trustee,  former  distinction  between, 

when  devisees  of  land  to  sell  .  412,  413 

naked  power  of,  to  sell  land,  effect  thereof        412,  413, 

414 
has  a  discretion  of  acting  for  the  benefit  of  the  es- 
tate .  .  .  428,  429 
may  call  in  a  debt  though  bearing  interest,  in  what 

case  .  .  .  .  428 

submission  to  arbitration  by  .  .  425 

cannot  bequeath  the  assets  .  .  .135 

cannot  waive  a  term  for  years  .  .143 

unless  where  there  are  not  assets  to  pay  the 
rent  .  .  .  143, 144 

what  he  is  to  do  where  there  are  assets  to  pay  rent, 

but  not  for  the  whole  term  .  .   1 44 

where  he  loses  the  effects  .  .  .  426 

where  he  sells  goods  at  an  undervalue         .  .  427 

where  he  suffers  money  to  lie  dead  in  his  hands  ib. 

where  he  delays  disposing  of  goods,  by  which  they 

are  injured  .  .  .  .     ib. 

responsible  only  for  the  damages  he  recovers  for 

goods  taken  out  of  his  possession  -  .  428 

not  answerable  for  a  loss  by  the  fall  of  stocks  .     ib. 

nor  for  money  lent  on  a  real  security  not  suspici- 
ous at  the  time  .  .  .     ib. 
shall  have  no  allowance  for  executing  the  office, 

unless  directed  by  the  will  .  .  456 


INDEX.  577 

Executor — continued.  Page 

whether  a  legacy  be  left  him  as  a  rccompencc 

or  not  ....   456 

in  what  special  cases  entitled  to  a  commission     .  457 

effect  of  grant  by,  of  all  his  property  .         .134 

to  what  actions  liable  .  .  458,  et  secj. 

not  liable  to  actions  for  a  tort  .     460,  461,  462 

nor   where  defendant  could    have    waged    his 

law  .  .  •  -461 

when  personally  liable  on  his  promise  463,  464 

what  acts  shall  constitute  an,  a  trader,   what  not 

486,  487,488 

.  xecutor  debtor  .  .  347 

one  of  several  executors  debtor  .  .  348 

when   he  shall  be  trustee  to  the  amount  of  the 

debt  for  the  residuary  legatee  or  next  of  kin    350 

executor  legatee  .  .  344.  350.  352 

his  assent  to  his  own  legacy         .  345 

express  .  ib. 

implied  .         345,  346 

where  not  implied      .  346 

till  he   has  made  his  election  shall  take  his 

legacy  as  executor  .  .  .     ib. 

must  act,  or  shew  his  intention  to  do  so,  to 

entitle  himself  to  a  legacy  for  his  trouble     347 
cannot  give   himself  a  preference  in  regard 
to  a  legacy  .  .  .     ib. 

reversioner  in  fee,  of  a  tenant  fur  years  .   134 

interest  of,  of  tenant  in  common  .  .155 

infant,  incompetent  to  act         .  34.  101.   356.445 

formerly  might   have  acted  in  many  re- 
spects at  the  age  of  seventeen         .     34.  356 
not  liable  to  be  sued  .  .  -  47 1 

executor  durante  minoritate  .  36,  37,  38 

executor  durante  minoritate  debtor  .       350,  35  1 

icts  of,  durante  minoritate  .  .  357,  358 

distinguished  from  an  ad- 
ministrator durante  mi- 
nor Hale  .  .406 
xe'eutor  durante  minoritate,  action  by  14.5 


578  INDEX. 

Executor — continued.  Page 

executor  coming  of  age  after  the  filing  of  a  bill  by 

administrator  durante  minoritate  .  .  458 

executor  durante  absentia  .  38 

acts  of  a  married  woman  executrix  .  .  358 

how  restrained  where  the  husband  is  abroad         .     ib. 
in  case  she  survive,  not  liable  to  an  action  sug- 
gesting a  devastavit  by  the  husband  •  471 
acts  of  co-executors,  359,   360.   430.  447.  457.  472.  483, 

484,  485,  486 
not  distinguishable  from  those  of  joint  ad- 
ministrators ....  408 
must  be  all  sued  in  case  they  have  all  ad- 
ministered .  .  .471 
where  one  shall  not  be  affected  by  notice 
to  the  other                 .                  .  .     ib. 
limited  executor  liable  to  be  sued              .  .     ib. 
power  of  a  surviving  co-executor              .  .  363 
of  a  mediate  executor     .             364.  430.  447.  452 
chargeable    in    what   case  for  the 
act  of  his  testator          .           430.  473 
when  residue  undisposed  of  shall  go  to,  when  not 

351,  et  seq.  361 
when  to  co-executors,  when  not  .  361,  et  seq. 

when   husband  and  wife  ex- 
ecutors shall  be  excluded 
from  the  residue     .     359.  362 
executor  de  so?i  tort  .  .  .39 

what  acts  make  one     .  38,  39.  107 
what  not       .      41.    103.   245 
by  statute  .  .     40 

when  a  party  is  disseisor  or  trespasser,  and 

not  such  executor  .  .  .42 

who  is  such,  a  question  of  law  .  .     ib. 

has  no  interest  in  the  property  .  .  243 

administration  granted  to,  effect  of  244.  367,  368 
shall  not  entitle  him 
to  an  action  of  tro- 
ver for  goods  pre- 
viously disposed  of 


INDEX.  579 

Executor — administration  granted  to,  effect  of—  continued.  Page 

to  defendant  for 
payment  of  the 
funeral  .  36S 

administration  granted  pendente  lite  to  .     ib. 

acts  of  .  •  364,  et  sec/. 

as  against  creditors  may  pay  debts  .  364 

as  against  the   rightful  representative  can- 
not plead  payment  of  debts  .  365 
on  general  issue  may  give  in  evidence  such 
payments  in  what  cases         .  .     ib. 
effect  thereof                        .  .     ib. 
when  they  are  of  no  avail  .  366 
in  general  cannot  retain             .                 366,  367 
may  under  the  statute                .  .366 
no  action  lies  by                          .                   366.  447 
remedies  against           .                        .         473,474.496 
cannot  after  action  brought    against  him  by   a 
creditor  avail  himself  of  a  delivery  of  the  ef- 
fects to  the  rightful  administrator  .  367 
nor  of  administrator's  assent  to  the  retainer   of 

his  debt  .  .  •     ib. 

if  he  deliver  the  effects  to  the  administrator  be- 
fore such  action  brought,  he  may  give  it  in 
evidence  under  file?ie  adviinistravit  .     ib. 

executor  of  •  473 

executor  de  son  tort  of  .  •  474 

Executorship,  division  of  .  •  38.  68 

Exemplification  of  probate         .  •  .77 

Factor  of  goods  appointed  executor  by  principal  .  457 

Fairs  .  .  •       -  L   139 

Father  .  .  ■  .87 

relations  by  his  side  .  .91 

Felo  de  se  .  .  •  .12 

Felon  .  .  12.  34.93.  144 

Feme  covert— promissory  note  given  to         .  •  228 

where,  deposits  money  to  her  separate  use  228, 229 
will  of  .  ,  10,11 

executrix  .  .  34.  358 

where  she  is  an  infant  .     34 


580  INDEX. 

Feme  covert — executrix — continued.  Page 

intestate  -  -    118 

and  residuary  legatee  -     ib. 

death  of,  after  judgment  recovered  by 
husband  and  her,  and  before  execu- 
tion -  -  -  136 
where  goods  of  the  testator  in  the  hands 
of,   may  be   taken  in   execution  for 
the  husband's  debt                             -     ib. 
cannot  administer  without  the  husband's  per- 
mission                    -                     -                      -     ib. 
how  administration  is  granted  to,  when  husband 

is  abroad,  or  incompetent  -  -     9 1 

administration  granted  to,  survives  not  to  hus- 
band -  -  -     92 
administration  granted  to,  and  husband  jointly 
during  coverture 
effect  of 
administratrix,  term  vested  in,  not  extendible  for 

husband's  debt 
mortgagee  in  fee 

for  a  term  of  years 
legatee  of 
executor  of 
devisee  of 
Ferrets  '   -• 

Filial  portion  by  the  custom  of  York 
Fines  imposed  by  the  judges  at  Westminster 

at  the  assizes 
by  justices  at  quarter  sessions 
by  commissioners  of  sewers 

bankrupts 

by  stewards  of  lects 

due  to  the  crown  for  copyhold  estates 

action  for  by  lord's  executor  assessed  on  copyholder  for 

admittance      -  437 

Fire  engine  -  199.211 

Fish        -  -  -  .      -  1  11.  1  18.  193 

Flax         -  -   150 

Foreclosure,  decree  of  in. i  -  -   189 


- 

ib. 

- 

ib. 

idible  for 

- 

136 

222, 

223 

- 

ib. 

320,  321. 

490 

68 

.  86 

- 

85 

- 

148 

- 

401 

- 

278 

278. 

459 

278. 

459 

278. 

459 

- 

ib. 

- 

ib. 

. 

260 

INDEX.  581 

Page 
Foreign  attachment,  executors  and  administrators  within  the 

custom  of  -  -  478 

in  what  cases  it  operates  -     ib. 

in  what  not  -  -  478,  479 

Foreign  court,  grant  of  administration  in         -  -  108 

Fraud — administration  granted  by  -  -   121 

administration  subsequent  granted  by  126.  128 

Fraudulent  gift  of  the  assets  by  executor  -  -   154 

Fruit  -  -  -  149.  193.  195 

Funds  public,  legacy  given  out  of  -  325;  333 

Funeral  -  -  -         41.  47.  245 

expences  of  -  -     246,  247.  424 

allowed  in  preference  to  debts  -  245 

to  what  extent  -  -  246 

payment  of,  under  a  void  administration  -  132 

Furnace  -  -  -  197.199 

Gaoler,  action  by,  against  executor  of  prisoner  for  provisions 

found  for  testator  ...  4co 

Garments  -  -  -  -   150 

Gavelkind  lands  devisable  by  felon  -     12 

Gentleman  pensioner's  place — purchase  for  son  of.  an  ad- 
vancement -  377 
Goods  household        -                      -                      -                 150.224 
delivery  of,  by  key               -                      -                      -  234 
Granary  built  on  pillars  in  Hampshire             -                     -  200 
Grandfather               -                                         -      87.90,91.384 
ex  parte  patcrnd           -                      -                       -  385 
ex  parte  matcrnd         ...     $. 
Grandmother              -                      -                      -     •                 -     ib. 
Gi  eat  grandfather                           -                     -                     87,88 
Grandchild                   -                      -                      -         87.  375.  390 
Great  grandchild        -                      -                      -           87,  88.  375 
Grandson  of  a  brother                     -                      -                      -  384 
Grand-daughter  of  a  sister             ...  385 
Grant  by  one  executor  of  his  interest  to  his  co-executor     -  360 
Grass       -                       -                       -              149.160.193.195.436 
Grates     -                      -                      -                      -                      -    198 
Guardian— to  an  infant                   -                     -       100,101,102 


582  INDEX. 

Guardian — continued.  Page 

to  a  minor                    -  100 

to  several  infants         -  -  -   101 

or  trustee  shall  not  change   the  nature  of  the 

estate                          -  -  182,  183 

may  by  decree  in  equity  -  -  183 

Half-blood  -  -  -  91.  94 

brother  or  sister  of  the  -  -  374 

Hares  -  -  -  147.  192 

Hawks  -  -  -  147.    149 

Hedges  -  -  -         145.193.206 

Heir        -  -  -  -  -  140 

chattels  real  which  go  to,  and  on  what  principle         -  176 

entitled  to  what  rent  -  -  176,  177 

to  a  nomine  p<£ nse  -  -   178 

power  of  entry  descends  to  -  -  180 

entitled  to  money  covenanted  to  be  laid  out  in  land     -   181 

unless  testator  intended  to  give  it  the  quality  of 

personal  estate         ...     ib. 
evidence  of  such  intention  -  -     ib. 

entitled  to  mortgages,  in  what  cases         -  -   183 

of  mortgagee  in  fee,  when  he  shall  have  the  benefit  of  a 

foreclosure  -  -  -   185 

when  he  shall  present  to  a  church  -  -  189 

entitled  to  charters  and  deeds,  court  rolls,  Sec.  -   191 

to  the  chests  in  which  they  are  deposited"     -     ib. 

to  an  antique  horn  -  -     ib. 

to  deeds  though  no  land  descended  191,  192 

where  land  has  been  sold  by  fraud,  the  money  refunded 

after  the  death  of  vendee  shall  go  to  his  -   188 

chattels  personal  which  go  to  -  -  192 

animate  -  -  -     ib. 

vegetable  ...   193 

trees,  Sec.  -         ■,  -  I93,etseg. 

inanimate  -  -  196,  etseq. 

entitled  to  damages  for  breach  of  covenant  affecting  the 

realty,  if  it  occurred  after  the  testator's  death  -  163 
executor's  right  to  enter  the  house  of,  to  remove  goods  225 
may  distrain  goods  not  removed  by  executor  -  255 


INDEX.  583 

Heir — continued.  Page 

may,  if  bound,  be  sued  by  a  creditor  executor  -  298 

specialty  creditor  may  resort  against  and  devisee  with- 
out suing  the  executor  of  debtor  -  -411 
at  law,  share  of,  in  distribution                 371.  376.  379.  401 
at  law  must  bring  into  hotchpot  advancement  out  of 
the  personal  estate       *                                 -  -  379 
though  in  the  nature  of  a  purchaser  under  a  mar- 
riage settlement             -  ib. 
co-heiresses  must  bring  ki  such  advancement               -     ib. 
lands  descended  to,  in  fee-simple          ...  409 
with  power  to  executor  to  sell            -  414 
advowson  descended  to                                                        409 
where  descent  to,  is  broken                 -              -             -  414 
estate   descended  to,  charged  with   the  payment  of 
debts                 ....             414,415 

trust  estate  descended  to  -  -  -  -  415 

at  law  excluded  by  his  inheritance  of  land  in  fee  or  in 

tail  from  a  filial  portion  under  the  custom  of  York  -  401 
of  copyholder  -  -  -  411,412 

in  borough  English  -  -  -  -  38  P 

of  lunatic       •  -  -  -  -  -  -  19 1 

Heir-looms  ....  196,197.211 

chattels  in  the  nature  of  ...  200 

by  special  custom  ....     2'#. 

Hemp  -  -  •    -  -  -  150,  194 

Hereditaments — corporeal  -  -  -  145 

•  incorporeal  ...         140,  145 

Herons  -  -  -  -  -  -  147 

Hops  -  -  -  -  150.    194,  195 

Hospital,  master  of.  -  -  -  201,202 

Hotchpot  -  -  -  376.  378.  395. 398 

advancement  shall  be  brought  into,  by  child  only 
among  the  other  children,  and  not  for  the  benefit 
of  the  widow  ....  -  378 

advancement  of  child  shall  be  brought  into,  by  his 

representative  -  -  378,  379 

advancement  out  of   the  personal  estate  shall  be 
brought  into  by  the  heir  at  law  -  -  379 

53 


584  INDEX. 

Hotchpot — continued.  Page 

though  in  the  nature  of  a  purchaser  under  a 

marriage  settlement  .  .  .  379 

advancement  pro  tanto  shall  be  brought  into  .     ib. 

advancement  shall  be  brought  into  by  co-heiresses  .     ib. 

Husband — and  wife,  relation  of  .   •  .  213 

and  wife,  interest  of,  in  the  chattels  real  of  the  wife  213, 

216 
alienation  of  wife's  chattels  real  by,  direct  or  conse- 
quential .  •    .  .         213,  214, 2! 5 
may  generally  assign  her  possible  and  contingent  in- 
terests              .              .             .  .  213,214 

where  not  .  .    .        .  .  .214 

lease  by,  of  wife's  term  to'commence  after  his  death  215 
cannot  charge  such  chattel  real  beyond  the  cover- 
ture .  .  .  ' .     ib. 
disposition  by,  of  part  of  the  wife's  term         .  215,  21 6 
wile's  term  extended  on  the  death  of            .  .216 
having   been   mortgaged   by    husband     and 
wife,  and  the  mortgage  paid  off  on  the 
death  of               .              .                  .  .     ib. 

and  wife  joint-tenants  .  .  .219 

and  wife  joint-tenants  of  a  rent-charge  during  their 
lives  .  .  .  .  .216 

entitled  to  an  advowson  in  right  of  wife  216,  218 

to  the  trust  term  of  the  wife  .  .  .218 

what  chattels  real  go  to  surviving  .  216,  et  seg. 

arrears  of  rent  due  to  wife  go  to  surviving  .  224 

chattels  personal  of  wife  in  possession  belong  to     .     ib. 
given  to  the  wife  after  marriage, 
though  not  come  to  his  pos- 
session, go  to  .  .  225 
though    wife    live     apart 
from                .  .     ib. 
where  property  given  to  the  wife  does  not  go  to  225, 226 
power  of,  with  regard  to  wife's  paraphernalia         .  231 
power  of,  of  an  executrix  to  act                31,  32.  241.  358 
power  of,  of  an  administratrix  to  act          .  .     92 


INDEX.  585 

Husband — continued.  Page 

a  receiver  may  be  appointed  where,  of  an  executrix 
is  abroad  .....  358 

action  by,  of  executrix  .  .  .  .445 

in  an  action  against  wife  executrix,  must  be  joined     .  471 
on  marriage   of   executrix   and   devastavit   by,   both 

answerable  .  .  •  358,  359 

devastavit  by.  executrix  and  subsequent  marriage,  hus- 
band as  well  as  wife  chargeable  .  .351) 
where,  and  wife  executors  shall  be  excluded  from  the 
residue             .                  ...                  .             .     ib. 

interest  of  representative  of  surviving  .  .     217 

grant  of  administration  to  .  .  83,  84.  224 

right  of,  thereto  at  common  law  83,  84 

how  it  may  be  controlled  .     85 

consent  of,  to  probate  of  wife's  will  .  .     68 

Wife — what  chattels  real  go  to  surviving  214,  215,  216 

what  chattels  personal  219,  22*0,  221.  399,  400 

choscs  in  action  of  .  _  .  .  220,  224 

which  vested  in,  before  marriage        .  220 

after  marriage  .     ib. 

where  husband«sues  for   choses  in  action  of,  and  dies 

before  execution  .  .  .  220,  221 

where  husband   dies   before  he .  has  proceeded  to  re- 
duce choses  in  action  of,  into  possession  .  221 
where  husband  dies  before  receiving  a  debt  due  to, 

under  a  commission  of  bankrupt  .  .     ib. 

where  husband  dies  before  seizing  an  eslray  in  fran- 
chise of  .  .  .  .  .     ib. 

where  husband   grants  a  letter  of  attorney  to  receive 

a  legacy  due  to  .  .  .  221, 222 

choses  in  action  of,  where   a   settlement  before  mar- 
riage has  been  made  in  consideration  of  the  wile's 
fortune  .  .  .  .  .  .222 

of  part  of  her  fortune  .  .     ib. 

where  the   settlement  is   silent  in  respect  to  personal 
estate  .  .  .  .  .     tb, 

decree  in  equity  in  favour  of  the  husband  and  wife  in 
right  of  .  .  .  .  2  23 


586  INDEX. 

Wife — continued.  Page 

where  husband's  representative  entitled  in  equity  to 

the  choses  in  action  of  surviving  .  222,  223 

where  fortune  of,  is  in  the  court  of.  chancery  on  the 

husband's  death  ...  .  .  223 

where  on  her  death  .  .  .  .     ib. 

where  there  is  issue  of  the  marriage  .  223,  224 

property  to  the  separate  use  of  .    .         225,226,  227 

to  what  arrears  thereof,  entitled  to,  at  her 
husband's  death  .  .  .228 

right  of,  to  paraphernalia  .  229.  422,  423 

how  excluded  from  paraphernalia  .  ...  232 

necessary  apparel  of  surviving,  protected  .     ib. 

husband  cannot  make   a  grant  to,  or  covenant  with 

her,  but  may  give  her  property  by  will  .         .  300 

executrix  or  administratrix  in  the  lifetime  of  husband  241. 

358 
next  of  kitflj  a  minor  .  .  .  .92 

may  elect  her  husband  her  guar- 
dian to  take  administration 
for  her  .  .     ib. 

where,  is  executrix,  and  husband  is  abroad  .  358 

on  his  death  her  interest  as  executrix  survives  to         .  242 
on  a  judgment  against  husband  and  executrix,  if  she 
survive,  not  liable  to  an  action  of  debt  suggesting  a 
devastavit  by  the  husband,  and  why  .  .  47 1 

in  case  she  married  after  testator's  death,  liable  for  the 

wasting  of  the  husband  .  .  .     ib. 

where  will  of,  executrix,  in  part  void  .  242,  243 

legacy  to  a  .  .  .  320,321.490 

Identitate  nominis  .  .  .  .  159.436 

Incapacity,  mental  .  .  .  .9 

Increase — interest  vested  in  executor  by  .  .166 

where  not  .  166,  167 

Indictment  for  forging  a  will,  pending  a  suit  in  respect  to 

it  in  the  ecclesiastical  court  .  .  .77 

Infant  .  .  .  .  9.  34.  356 

distinguished  from  a  minor  in  the  spiritual  court         .  100 

aesignment  of  guardian  by  ordinary  to         .  .100 


INDEX.  587 

Infant — continued.  Page 

executor         ......  357 

executor  and  residuary  legatee  .  .  124 

where  one  executor  is,  and  his  co-executor  not  102 

marriage  of,   after  administration  granted  durante 

minoritate  :  .  .  .  ib. 

death  of,  after  administration  granted  during  his  mi- 
nority, and  that  of  other  infants  .  ib. 
executor  after  seventeen,  could  formerly  have  sued 

by  guardian,  or  prockein  amy  .  445 

cannot  now  maintain  an  action  till  he  comes  of  age       ib. 

executor  formerly  might  have  been  sued  after  the 

age  of  seventeen  .  .  .  47 1 

'  cannot  now  till  he  is  come  of  age  .  ib. 

legacy  to  .  .  .  .  490 

payment  thereof  into  court  .  318 

•     maintenance  of  325.  327.  357 

education  of  ....  328 

Injunction  .  .  .       271.318.358.445.490 

Insanity  of  next  of  kin  ....  103 

Insolvency  .  .  ...  35.  102.  341 

Inspector  of  seamen's  wills  .  .  .        60.190 

Interest  of  debts  .  .  .  286,287.464 

*  of  legacies  .  .  «        323fctseq.  328 

executor  liable  for  in  equity,  in  what  cases  480 

Intestacy  •      .  .  .  .  80 

Inventory  .  .  .  .  .  41 

the  nature  of       .     .  .  .  247,  et  seq. 

must  be  written  and  stamped         .  .  246 

exhibited  in  the  spiritual  court  96.  247,  248.  49  I 

for  whose  benefit  .  ..  248 

at  what  time  ibid,  et  seq. 

effect  of  .  .  249,  250 

omission  to  bring  in         .  .126.  249 

when  dispensed  with  .  251 

when  decreed  before  probate,  or  admin- 
istration under  seal  .  252 
commission  of  appraisement  and,  there- 
upon                  .             .             .               253 
how  far  questionable  by  a  creditor  ib. 


588  INDEX. 

Inventory — continued.  Page 
exhibited  in  a  court  of  orphanage  in  Lon- 
don, in  what  case          .             .  254 
Ireland,  leasehold  estate  in                 .             .             .  144 
Issue — taken  on  a  probate,  how  triable                      .  78 
taken  on  grant  of  administration                   .  95 
Issues  forfeited           .....  278.  459 

Jacks  ......  198 

Jewels  .  .  .      .     •.        150.224.229,230.401 

ancient,  of  the  crown  .  .  .  199 

Joint  tenancy  in  chattels  .  .  .  163 

Judgments  .  .  .  .  .         56.432 

in  courts  of  record  .  .  .  26- 

priority  of,  depends  not  on  the  original  cause  of 
action  .  .  .  .  264 

in  inferior  courts,  records  of,  removeable  into  the 

courts  of  record  at  Westminster  .  ib. 

on  a  scire  facias  .  .  .        264,265 

interlocutory  judgment  .  265,  266.  2S9 

where  after  verdict,  and  before  the  day  in  bank, 

defendant  dies  ...  .  .  265 

where  after'  an  interlocutory  judgment  defendant 
dies       , .  .  .  .  ib. 

where  defendaut  dies  after  a  writ  of  inquiry  exe- 
cuted and  before  the  return  of  it    •        .  266 
relation  of                 .              .              .              .  ib. 

fraudulent  ....  ib. 

ijudd  com/iutet  .  .  ..  .  267 

in  a  foreign  country  .  .  ib. 

the  docquetting  of  ...        266.  269 

not  docquetted  how  considered  .  2^8 

of  inferior  courts  not  required  to  be  docquetted      269 

yet  executor  bound  to  take  notice  of  them  ib. 

against  executor  .  .  .       265.  267 

where   there  are  several  executors  29  1 

by  the  name  of  administrator,  or 

vice  versa  .  .  ib. 

of  assets  quando  acciderinl  .  .  479 

confessed  by  one  of  several  co-executors  360,  47-? 


INDEX.  •  589 

J  ii  figments — continued.  Page 

on  simple  contract  confessed  by  an  executor  being- 
ignorant  of  a  bond,  on  which  judgment  is  after- 
wards given  .  .  .  293,  294 
against  husband  and  wife  executrix,  if  she  sur- 
vive, not  liable  to  an  action  of  debt  suggesting 
a  devastavit  by  the  husband       \              '.  .  47  I 
form  of,  against  an  executor           .              .        463.  469 
form  of,  in  the  alternative               .             .        463,  464 

for  the  costs  467,  46S 

interest  on  a  .  .  .  .  286 

Justices  of  the  peace  have  no  authorityto  order  an  executor 
to  maintain  an  apprentice  .  .  .  .  476 

King — may  be  executor  .  .  .  .33 

entitled  to  effects  of  intestate  in  what  cases         107,  108 
debts  due  to  .  .  259,  etscq.  286 

debtor  of,  outlawed  on  a  mesne  process         .  .261 

assignment  of  debt  to  ...     ib. 

property  accruing  to,  by  outlawry  .  .  260 

Land — settlement  of,  on  child  .  .  371.376 

Leads  .  .  .  .  .  .  .197 

Lease — for  years  56.  86.  140,  141.  176, et  seg.  212.  252 

determinable  on  lives  .  140.  176 

of  a  rectory  .  .  .  .  .146 

by  parol  ....  278,  279 

made  by  administrator  durante  minoritate  how  far 
good  .  .  .  .  .  .  405 

sale  of,  by  limited  administrator  .  .     ib. 

Leets — profits  of        .  .  .  *  ..  .139 

Legacy — upon  condition  .  .  .  .314 

definition  of  .  -  .  .  .299 

general         .  .  .  301,  302,  303 

specific  .  .  .  .     ib. 

lapsed  or  vested,  in  what  cases  171,  172.  303.  306 

357.  454 
shall  lapse,  though  left  to  legatee,  his  execu- 
tors, administrators,  and  assigns  304 
though  testator  express  an  inten- 
tion to  the  contrary  .         ib, 


590  •  INDEX. 

Legacy — continued.  Page 

if  legatee  die  before  the  condi 
tion  on  which  it  is  given  be 
performed  .  .  238 

or  before  it  is  vested      304,  305 
may  be  so  framed  as  to  prevent  its  lapse  .         304 

to  several  persons  not  extinguished  by  the  death  of 
one  of  them  .  .  .  -     ib. 

nor  to  remainder-jnan  by  the  death  of  the  first 

legatee  ,  .  .  .  .     ib. 

nor  to  remainder-man  by  his  death  in  the  life- 
time of  the  first  legatee  .  305,306 
nor  if  the  legatee  take  in  the  character  of  trustee  304 
nor  if  made  to  carry  interest               .             305.313 
distinction  between  such  as  is  vested,  and  such  as  is 

not  ■'.  .  .  171,  172.305.  313 

charged  on  land,  when  vested,  when  not       172,  173,  174 

to  be  laid  out  in  land  ....  303 

executor's  assent  to  .'      »        44.46.140.306.308 

why  necessary         ^     .  306, 307 

effect  of  ...  307 

legatee  cannot  take  possession  of, 

before  such  assent  .  39.  307 

legatee's  interest  in,  before        307,  308 

such  assent  express  .  .  .  309 

implied  .  .  308.  310 

absolute  .  .  .310 

may  be  on  condition  precedent        ib. 

not  subsequent         .         310,311 

shall    confirm   an   intermediate 

grant  by  legatee  of  his  legacy  31 1 
to  a  release  of  debt  by  will  308 

good  before  probate  .  312 

not  before  executor  has  attained 

twenty-one  .  .     ib.- 

has  relation  to  testator's  death      3 1 1 

once  given,  irrevocable  .  ib. 

when  it  cannot  be  given  311,312 

one  of  several  co-executors  may  assent  to         .         .361 

assent  to,  by  limited  administrator,  with  the  will 

annexed  .....  405 


INDF.W  591 

5,cp;ac.y»—  continurS.  Pago, 

payment  of  .  312.424 

when  to  be  paid  312,  313 

to  whom  .  312,  313.  321.  323.  327,  328 

voluntary  bond  payable  in  preference  Lo    283 
payment  of,  when  legatee  is  an  infant  .  314 

executor  has  no  right   to  pay   it  to  the 

father  .  .  314,  et  seq. 

unless    very  small,  when   he  may,  into 
the  hands  of  the  infant,  or  to  the  fa- 
ther     •  .i  •  i  318 
payment  of  infant's,  into  court, under  the  stat.  36 

Geo.  3.  c.  52.  .  •  •     ib. 

payment  of,  to  an  infant  by  an  executor,  to  save  a 

forfeiture  of  his  own  .  •  316 

payment  of,  to  the  father  of  an  adult  child  .314 

illusory  payment  of  .  •  320 

payment  of,  to  be  divided  at  executbr's  discretion     319, 

320 
where   the   legacy  is   left   to  one  lega- 
tee, to  be  divided  among  himself  and 
others  .  .,         .  .321 

payment  of,  where  legatee  is  a  married  woman  .  320 
living  separate  from  her  husband  .  ib, 
divorcecra  mensd  ct  thoro  320,  321 

executor  may  decline  paying  her  legacy 
where  no  provision  has  been  made  for 
her,  unless  the  husband  will  make  a 
settlement  .  .321 

nor  will  chancery  compel  such  payment 
but  on  the  same  terms,  unless  the  wife 
appear  in  court,  and  consent  .     ib. 

payment  of,  where  legatee  is  a  bankrupt  .     ib. 

where  the  legacy  was  left  after  signing, 
but  before  allowance  of  his  certificate     ib. 
conditional  payment  of,  and  security  to  refund,  an  • 

.  obsolete  practice         .    .  •  •  322 

payment  of,  bequeathed  to  legatee  conditionally  .313, 

314 

54 


592  INDEX, 

Legacy— coniinyed.  Page 

payment  of,  without  notice  of  the  revocation  of  the    ' 

will  .  .  .79 

distinction  between  a  voluntary  and  a  compulsory 

payment  of  .  .   "4  I 

where  the  assets  were  originally  deficient, 

and  where  they  afterwards  became  so 

by  misapplication  .  .     ib, 

payment  of  interest  on  .        171,172.323 

from  what  period  to  commence  323. 

327 
when  specific         .  .323 

where  legatees  are  infants        .  325 
where  infant  legatees  die  before 

twenty-one  .  .     ib, 

where  the  infant  is  the  child  of 

testator  .  .     ib. 

where  a  natural  child  .       326 

where  a  grandchild  .     ib. 

where  a  nephew  .     ib. 

on  a  becjuest  of  a  residue  to  be 

divested  on  a  contingency    .     ib. 
where  left  to  infant,  payable  at 
twenty-one,  and  devised  over 
on  ^is  dying  before,  and  he 
so  dies  .  326,327 

where  father  of  infant  legatee 
is  living  .  .  327 

where  the  principal  of  a,  left  to  an  infant,  shall  be 

broken  in  upon  .  317,  318.  327,328 

where  not  .  317,318.328 

rate  of  interest  payable  on  .  .  328 

must  be  paid  in  the  currency  of  the  country  in 

which  testator  resided  when  he  made  his  will      322 
interest  to  be  computed  according  to  the  course 

of  the  court  .  .  .  328 

how  paid  where  testator  left  effects  partly  here, 
and  partly  abroad         .  .  .  322 

where  some  legacies  are  described  as  ster- 
ling, and  others  not  .  „  323 


• 


INDEX.  593 

Legacy — how  paid — continued.  I'agc 

where   legacy  is  charged  on  lands  in  another 
country  .  ...   323 

payment  of,  hy  administrator  under  a  void  adminis- 
tration .  .  .  .  .  .  .1.32 

out  of  a  mixed  fund  of  real  and  personal  estate,  paya- 
ble on  a  future  day,  and  legatee  dies  before  the  day  422 
receipt  for  .  .  .  329.  and  dfift. 

limitation  of  .  .  .  .  .170 

ademption  of  .  .  329 

express  .  ...  .  ..id.. 

implied  .  .  .  ibid,  ct  scq. 

pro  (ante  .  .  .   333  . 

when  cumulative,  when  not         .  .  334.  336 

when  in  satisfaction  of  a  debt,  when  not         .     336.  338 

_  abatement  of,  general  or  specific       .     306.  339,  3*10^347 

of  specific  legacies  out  of  a  specific  chattel     340 

of  legacy  to  a  charity  .  .     id. 

refunding  of,  in  what  cases,  in  what  not       341,  342.  347 

payment  of,  to  residuary  legatee  .  .   342 

left  to  executor  ...  .   347 

pecuniary  or  specific  unequal  to  co-executors      361,  362 
equal  pecuniary  legacies  to  co-executors  .  362 

equal  specific  legacies  to  co-executors  .  .     id. 

executor's  assent  to  his  own  .  345 

express  .  .  .  .     ib. 

implied  .  .     ib. 

cannot  give  himself  a  preference   in 

regard  to  a  .  .  .347 

on  a  bequest  to   executors   generally, 

one  may  assent  for  his  part  .  361 

feffect    of   one   executor's    taking    his 
legacy   without    the   assent  of   the 
other  .  .  .  .45 

to  executor  for  his  trouble  .  347.  352.  456 

must  act,  or  shew  his  in- 
•  tcnlion  to  act,  to  entitle 
himself  to  such  a  -.•34/ 

to  one  of  (wo  executors  for  bis  care  and  trouble       ,   361 


594  INDEX. 

Legacy — continued.  Page 

specific,  to  executor,  no  bar  of  money  due  to  him  on 
mortgage  .  .  .  185,  186 

when  debt  of  executor  a  specific  bequest    to    him, 
when  not  .  .  .  .  347.  351 

specific,  to  husband  and  wife,  joint  executors  359.  362,  363 

interpolation  of  a  .  .  .  .70 

■   where  lands  shall  be   assets  only  for  the  payment  of 

legacies  .  .  .  .  .416 

payable  at  a  future  time  may  be  secured,  and  appro- 
priated in  equity  .  .  .  482 

whether  vested  or  contingent  .  .  .     ib. 

out  of  personal  property  may  be  sued  for  in  the  eccle- 
siastical court  ....  489 

in  a  court  of  equity  .  .  .  .  479 

^puf  of  land  only  in  a  court  of  equity  .  .  490 

bond  for,   cannot   be    enforced    in  the  ecclesiastical 
court  .  .  .  .  .  .491 

no  action  at  law  lies  against  an  executor         .       465,  466 

in   the  hands  of  an   executor  not   subject  to  foreign 
attachment  ....  479 


Ul   LULU  I1H-U  L 

Legatee — who  may  be. 

.  299 

wife 

.  300 

infant  in  ventre  sa  mere 

.     ib. 

who*  not              . 

.    299 

traitors 

.     id. 

persons  i\ot  having  qualified  for  offices 

299,  300 

persons    denying   the   Trinity,   for   the  second 

offence  ...  .  .  300 

or  the  scriptures  .  .  .     ib. 

artifices   going    out  of    the   kingdom  to  exer- 
cise  or   teaCh    their  trades   abroad,  and  not 
returning  within  six  months  after  due  no- 
tice .  .  .  .     ib. 
witnesses  to  the  will  or  codicil  .     ib. 
mistake  in  the  christian  name                .              .              .     ib, 
specific,  cannot  retain  the  legacy  in  his  possession, 
•   *              though  there  be  assets                           .  .  307 
nor  although  testator  direct   that   the  legatee 


INDEX.  595 

Legatee — continued.  I  age 

shall  take  the  legacy  without  the  executor's 

assent  .  ...  307 

advantage  of  340 

disadvantage  of  ib. 

where  executor  is  344 

residuary  .  .  99,  117,  118.  122 

legatees,  several  residuary  .  .  99.  U 7 

executor  and  residuary  .  •  .117 

feme  covert  executrix  and  residuary  .  .118 

marshalling  assets  hi  favour  of  .  .  420 

may  sue  in  chancery,  and  in  the  ecclesiastical  court 

at  the  same  time  .  .  •  496 

Letters,  private,  written  'by  testator,  enjoined  from   being 

published  without  executor's  consent  .  .  455 

Libeller  .  .  .  •  .13 

Limitation — executor's  interest  by  .  .170 

of  a  legacy  .  .  .  .171 

Limitations — statute  of,  executor  not  bound  to  plead  to  an 

action  by  testator's  creditor  .  343.  429 

executor's  suffering  testator's  creditor  to  avail 

himself  of  .  .  426,  427 

Lip  pendens  .  .  .  66.  94.  103 

Literary  property  .  .  •  .152 

London — custom  of  the  city  of  .  388,  ct  seq. 

where  it  shall  controul  that  of 

York  .  •   402 

.  custom  of,  and  York,  in  the  main  agree       .         402,  403 

Looking-glasses  .  .  •  •  .197 

Loss — of  probate  .  •  •  .77 

of  letters  of  administration  .  .  .95 

of  the  effects  by  the  executor's  negligence  .         .  426 

Locks  and  keys  .  .  •  .197 

Lunatic — committee  of  .  .  !82,  183 

estate  of  .  .  -   19 1 

chancery  will   change  the  nature  of,  for  the 

benefit  of  th6  owner  .  .     ib, 

Maintenance,  money  expended  for  child's,  no  advancement 

380.  3 'J 6 
Mandamus  .  .  57.66.36,94.105 


596  INDEX. 

Page 
Manure  .  .  .  .  .150 

Marines  .  .  .  5.  60.  109 

Marriage  settlement  .  .  .  284 

articles  .  .  .  .     ib. 

settlement,  operation  of,  in  regard  to  the  custom  of 

London  .  .  .  392,393 

of  female  orphan  of    the  city   of   London   under 
twenty-one  .  .  .  393,394 

Mayor  and  commonalty  .  .  .  .201 

aldermen  of  London  .  .  .  254 

Melons  .  .  .  .  .  .   150 

Memorial  of  wills  affecting  lands  in  Yorkshire  or  Middlesex  246 
Merchandize  .  .  .  .  .150 

Merger  of  a  term  .  .  .  141,  142 

Millstones  .  .  .  .  .197 

Minor  distinguished  from  au  infant  .  .100 

Money  .  .  .  .  ..         150.  224 

covenanted,  or  agreed  to  be  laid  out  in  land  8.   181 

cannot  be  followed  when  invested  in  a  purchase  .   182 

where  land  had  been  sold  by  fraud,  refunded  after  the 
death  of  vendee  .  .  .  .188 

collected  on  briefs  for  rebuilding  a  copyhold  tenement 

200,  20.1 

of  testator  intermixed  with  executor's  .  .  238 

Monument  in  a  church  .  .  m. .  .199 

Mortgages  .  .  .  139.164.183.222 

of  freehold*  and  copyhold  lands  .  .  422 

in  general  personal  contracts,  and   the  mortgage-    ■ 

money  belongs  to  the  executor  .  183.  187 

where  not  .  .  .  .   1S^> 

when    the  condition  mentions    neither   heirs, 

nor  executors  .  .  .183 

if  it   appoint   the   money  to  be  paid   to.  the 

heir  or  executor  .  .  183.  185 

mortgagor's  failing  to  redeem,  effect  of  .  .186 

forfeiture  of,  and  mortgagor's!  releasing  to  the  heir  of 

mortgagee  in  fee  .  .  .  .    18? 

devise  of,  as  real  estate  by  mortgagee  ,  .    1SS* 

devise  of,  as  real  estate  after  a  decree  of  foreclosure,  nm  1  b() 


INDEX.  597 

Mortgages-—  continued.    '  Page 

where  it  will  not  pass  as  land  under  a  general  de- 
scription of  locality  .  .  .189 
ancient              .       •           .                                    .  ,187 
in  fee  to  a  citizen  of  London             .             .             .     ib, 
money  secured  by,  articled   to   be  laid  out  in  land, 

and  settled  .  .  .  .189 

mortgaged  lands  descended  .  .  ,  4l« 

devised  .  .  418.421 

estate  bought  subject  to  .  .  ,419 

in  fee,  lands  held  by,  descending  before  redemption        • 
to  the  heir  within  the  province  of  York  .  401 

debts  by,  as  they  affect  the  personal  assets  .  285 

how  far  a  revocation  of  a  will  .  .     26 

legacy  given  out  of  ....  323 

to  wife  in  fee  .  222, 223 

for  a  term  of  years  .  .  .     ib. 

by  husband  and  wife  of  the  wife's  term  216.  218 

of  terms  of  years  by  executor  .  .  256 

mortgaged  terms,  assignment  of,  by  executor  .     ib, 

executor  not  barred  of  money  due  on,  by  a  specific 
legacy  .  .  .  1  §5,  ISC- 

Mortgagee,  fraudulent  sale  by  .  .  .188 

Mother  .  .  .  .  .90 

relations  by  her  side  .  .  .91 

what  a  child  receives  out  of  the  estate  of  the,  no  ad- 
vancement .  ...   380 

Ne  exeat  regno — against  feme  covert  administratrix  .  489 

Negro  servants                   .                   .                   .  .151 

Nephew                ....  90.  385 

son  of  the                 . .                   .                 .  .90 

Niece                   .                   .                   .                 .  .  ss5 

Nomine  fianx                  .                   .                   .  ,              .    17S 

Nominees  when  the  king  is  executor             .  .             .33 

Notice  of  judgments  docquetted             .             .  269.  293 

not  docquetted           •  .      268,  269 

in  inferior  courts  of  record  .  269 

of  a  decree  in  equity      .         .                   .  .  270 

express             .                  ...  270.  292 

implied             .                  .                  .  ib, 


598 


TXDF.X. 


Notice — continued.  Pap;^ 

of  recognizances,  statutes,  and  other  inferior  debts  of 

record  .  .  .  278 

of  debts  by  specialty  .  .  .  293 

one  executor  shall  not  be  affected  by,  to  the  other  who 

conceals  it  from  him  ....  472 

where,  to  one  shall  be  presumed  notice  to  the  other       ib. 

Nuncupative  will  .  .  .  2.   16.  37.  59 

executor  may  be  appointed  by  .     37 

codicil  .  •    .  .  .6 

• 

Oath  on  renunciation  of  executorship  .  .44 

on  taking  out  probate  •  .58.  250.  492 

administration  .  .  96.  250 

special,  on  exhibiting  an  inventory  .  250.  252 

Office,  civil  or  military,  purchase  for  son  of,  an  advancement  377 
Official  •   .  .  .  .  66.74 

Orphan's  portion  .  .  .  .221 

Orphanage  money  ....  202 

part  by  the  custom  of  London  .  .  393 

nature  of  the  interest  in  .  .   399 

release  of,  for  a  valuable  consideration,  binding 
in  equity  .  .  399, 400 

Ovens  .  .  .  .  ,198 

Overseers  of  the  poor,  money  due  from  .  .  262 

Outlaw  .  .  .  •        12.34.93.154.213 

Outlawry,  property  accruing  to  the  crown  by         .         260,  261 
of  the  king's  debtor  on  mesne  process  .  .  '261 

legacy  forfeited  by,  of  legatee,  though  before  exe- 
cutor's assent  .  ,  .  .  .   308 
Owelty  of  partition,  bond  for           .    .                 .              180,181 


Pales  .  ... 

Papists  .  ... 

Paraphernalia  of  the  wife  .  .    • 

necessary  apparel 

bed 

pearls 

diamonds 

plate  bought  with  wife's  pin-money 


197 
35 
229 
ib: 
ib. 
ib. 
ib. 
230 


INDEX.  599 

Paraphernalia — continued.  Page 

cloth  delivered  to  wife  for  her  apparel  230 

jewels  presented  by  husband  to  wife  for  the 

express  purpose  of  wearing  them  230,  231 

husband  may  sell  or  give  away  in  his  lifetime 
wife's  ornaments  .  .  .231 

cannot  bequeath  them  .  .     ib. 

wife  not  entitled  to  such  ornaments  where  the 

assets  are  deficient  at  husband's  death  ib. 

wife's  ornaments.preferable  to  legacies  ib. 

if  pawned  by  husband  in  his 
lifetime,  shall  be  redeemed 
out  of  his  personal  estate  23 1,232 
where  wife  is  excluded  from,by  her  own  agree- 
ment ....  232 

her   necessary  apparel   protected    even 
against  creditors  .  .  .     ib. 

when  husband  bequeaths  to  wife  her  jewels 
and  then  over,  and  she  makes  no  election 
to  have  them  as 
marshalling  assets  in  favour  of 
Parents 

Parish  apprentice 
Parrots  .  •  . 

Pars  rationabilis  . 

Parsnips  .  ... 

Parson  . 

Partner — on  the  death  of  one,  his  interest  at  law  vests  in  his 
representatives 
but  the  remedy  at  law  survives 
surviving,  regarded  in  equity  as  a  trustee  for  the  re- 
presentatives of  the  deceased         ..  .  .     ib. 

interest  of  the  executor  of  a  deceased,  in  choses  in 
action  ......   163 

how  the  action  in  such  case  brought  .  .     ib. 

executor  of  a  deceased,  and  the  survivor,  cannot  be 

jointly  sued  for  a  debt  due  from  the  partnership     475 

Partners  in  trade  .  .  •  •  .454 

Partnership  in  trade  .  .  .  .155.  166 

Partridges  :  147,143.  192 

55 


422, 

ib. 
423 

90 
476 
148 

81. 

389. 

403 

150. 

194 
201 

s  in  his 

ib. 

ib. 

coo 


1NDKX, 


Page 

Patent — granted  to  testator  -  -  -  -152 

grant  by  letters,  of  effects  of  a  bastard  dying  intestate 

and  without  issue  -  107,  108.  386,  387 

Pawn — goods  in  ...  154.  164 

executor's  power  to  redeem  them         -  '  -  257 

executor  redeeming  goods  with  his  own  money 

in,  shall  be  indemnified  out  of  the  effects  164,  165 
executor  so  redeeming  goods  in,  to  the  amount 
of  their  value  is  .regarded  as  a  purchaser  of 
them  in  his  own  right  -  -  -   165 

effect  of  such  redemption  of  goods  in,  where 

the  time  specified  for  redemption  is  past  ib. 

wife's  paraphernalia  in  -  231,  232 

writings  of  an  estate  in  -  -  -   192 

-  229 
50,51,52 

199,200 

t  v      -  147,  148.  192 

-    .  -  150.  197 

141.  147.  149.  192 

-  228 
:                .     ib. 

71,72 

how  bound  by  grant  of 

'probate  here  .     ib. 

.   416 

.    149 

.368 

i      289.  463.  467 

.   472 


Pearls  -  -         - 

Peculiar  - 

Pews  - 

Pheasants  -  - 

Pictures 

Pigeons 

Pin-money  -  -     '  - 

arrears  of,  at  husband's  death 
Plantations,  judge  of  probate  in  the* 


estate  in  fee  in 
Plants  ..... 

Plea  fiuis  darrein  continuance 
Plea,  false,  pleaded  by  executor 
Pleas,  distinct,  pleaded  by  co-executors 
Plene  administravit,  plea  of  267.  279,  280.  365.  367.  470 

evidence 'thereof  267.282.298.367 

Policy  of  insurance,  re-assurance  by  executor  .  453 

Portion  ....  172.329.371.376 

infuturo,  an  advancement  .  .  377 

contingent,  an  advancement  .  377,  378 

charged  on  land,  when  vested,  wliQn  not  172,  173 

may  be  vested,  but  not  raisablc  im- 
mediately .  .  .173 


INDEX. 


601 


Portion — continued.  Page 

devise  for  raising,  pursuant  to  an  agreement  before 

marriage      -  -  -  -411 

filial,  by  the  custom  of  York  -  -  40 1 

Portraits  ancient         -  -  -  -   199 

Possibility  .     -  170.  212,  213,  214 

tenant  after,  of  issue  extinct  -  -207 

Post-office,  money  due  for  letters  to  the  r  -  262 

Posts  and  rails  -  -  -  -   197 

Poultry  -  -  -  -   147 

Power  of  executor  to  sell  land  -  412,  413.  416 

Presentation  to  a  church  -,  139.144.189,190 

when  the  grantee  of  the  next,  dies 

after  the  church  becomes  void, 

and  before  presentation  -   190 

Presents  by  a  father  to  his  child  -  -  380.  396 

Priority  of  date,  when  not  material  -  263.  265.  275 

Prisoner  -  -  -  10.93.  15  1 

Probate — acts  of  an  executor  before         -  16.  245.  312 

what  actions  he  may  commence  before  46.  415,  446 

what  actions  he  may  maintain  before  -     47 

executors  liable  to  be  sued  before  -  48,  49 

relation  of  -  -      '        46, 47 

shall  not  prejudice  a  third  person  47 

death  of  executor  before  -  -  49.115 

after,  taking  the  oath,  but  before 

the  passing  of  the  grant  49 

effect  of,  by  limited  executor  in   regard   to  subse-* 

quent  executor         -  -  -  49.  457,  458 

jurisdiction  of  granting  -  -  -     49 

by  courts  baron  -  -     50 

by  mayors  of  boroughs       -  -     ib, 

by  the  ordinary  or  metropolitan  -     ib. 

bona  notabiiiay  what  shall  be        51,  el  seq. 

of  the  amount  of         -  -     53 

debts  bona  notabilia     -  -      54 

how  considered  when  by  specialty      55 

when  by  simple  contract     ib. 

bona  notabilia  in  England  and  Ire-. 

land      -  -  -     53 


602  INDEX. 

Probate — continued.  Page 

what  shall  not  be  bona  notabilia      52.  56 

privilege  of  granting,  personal  -  -     66 

when  void,  when  voidable  -  53.  73 

of  will,  when  proved  in  the  common  form,  and  when 

per  testes,  and  how  -  -  56,  57 

how    will    and    codicil    in    testator's    handwriting 

proved  -     57 

in  another's  handwriting       58 
oath  on  taking  -  -  -     *A. 

what  is  styled  so  -  -  -     ib. 

of  nuncupative  wills  -  -  59 

of  the  wills  of  seamen  and  marines        -  -     60 

where  executor  is  infirm,  or  at  a  distance  in  Eng-. 

land  or  foreign  parts       -  -  -     65 

of  citing  executor  to  prove  -  -     ib. 

effect  of  his  failure  to  appear  -  -     ib. 

penalty  for  his  acting  and  neglecting  to  prove  with- 
in six  months  -  -  .  43. 66 
ordinary  bound  to  grant                          -  -     66 

compellable  by  mandamus  -  -     ib. 

what  he  may  return         -  -  -     ib. 

may  act  by  his  official  -  -     ib. 

wh*en  granted  by  the  dean  and  chapter  -    -67 

of  a  bishop's  will  -  -  53.  67 

double  -  -  -  -     67 

where  several  executors  with  distinct  powers  -     ib. 

of  will  of  a  married  woman  -  -     68 

when  limited  -  -  68, 69 

new,  by  executor  of  executor  not  necessary  -     ib-. 

by  surviving  executor,  having  refused  during  the 

lives  of  his  co-executors  -  86 

of  wills  of  personal  estate  only  -  -     69 

of  a  mixed  nature  .  -  -     70 

not. to  be  granted  of  wills  respecting  lands  merely       69, 

7(> 

of  a  will  with  reservation  as  lo  a  legacy  -     70 

of  a  will  of  a  party  long  absent  •     ib. 

.     of  will  lost  -  -     71 

of  will  illegible  bv  accident  -  ib 


INDEX.  603 

Probate — continued.  .  Page 

how  a  will  proved  in  Scotland  is  proved  here  .     71 

how  if  in  Ireland         .  '    .  •     *&> 

how  if  in  the  East  or  West  Indies  .     ib. 

grant  of,  by  judge  of  probate  in  the  plantations  after 

shcIi  grant  here  .  .  71,72 

of  a  will  made  abroad  disposing  of  effects  here         .     72 
of  effects  abroad  according  to  the  custom  of  the  coun- 
try sufficient  .  •  .     ib. 
of  will  in  a  foreign  language                  .              .       •     ib- 
of  will  annexed  to  an  administration  .     98 
revocation  of                         •                      •             73.  75.  78 
revoked  for  fraud                  .  .73 
on  proof  of  revocation  of  the 

will        '.  •     »■ 

of  making   a   subse- 
quent will  .     ib. 
of  appeals  in  regard  to        .                     .                   73.  75 
when  affirmed  on  appeal,  cause  sent  back  .     75 
granted  de  novo  by  court  of  appeal  when  sentence 
reversed        ..-.**     ib. 
effect  of                                              •                  75.  115 
death  of  executor  before                           .                 115.140 
effect  of                     .    -                     •  •     *b> 
death  of  executor  residuary  legatee  intestate  before   1 18 
effect  of                          .                      .                      -     ib- 
death  of  executor  residuary  legatee  leaving    a  will 
before           .                      •                      •  .     ib. 
effect  of                          .  ib. 
death  of  executor  residuary  legatee  intestate  after, 

effect  of  .  •  '   .     ib. 

within  what  time  will  be  proved  in  the  common  form 

may  be  disputed  .  ■  -  ..    76 

within  what  time  a  will  formally  proved        .     ib. 

unrevoked,  not  to  be  contradicted  .  •     ib. 

seal  of  ordinary  may  be  shewn  to  be  forged  .     ib. 

or  that  there  were  bona  notabilia         .  ■     ib- 

payment  of  debt  to  an  executor  under,'  of  a  forged 

will,  good  . .  .  76>  ?7 


604  INDEX. 

Probate — continued.  Page 

practice  not*  to  try  forgery  of  a  will  while  litigating 

in  the  spiritual  court  .  .     77 

payment  of  money  under,  of  will  of  a  living  person 


void 

.     ib. 

loss  of 

.     ib. 

how  probate  may  be  proved 

. 

77,78 

issue  taken  on,  triable  by  a  jury 

.     78 

effect  of  revocation  of 

. 

.     ib. 

of  registering  at  the  bank 

. 

255,  256 

Prohibition 

70.  127. 

318. 

491.  494 

Promise — memorandum  in  writing  of 

.   464 

consideration  of 

.     ib. 

what  is  sufficient 

•     ib. 

Promissory  note 

. 

157 

.  235.286 

interest  on        *  '. 

.   287 

Pumps 

. 

.    197 

Fur  auter  vie  tenant 

. 

.  208 

estate 

410,  411 

Quaker 

•      43 

Quare  im/iedil 

158.   161, 

,240. 

434.  437 

Queen 

• 

.      12 

Rabbits 

141.  147 

Rails 

Receiver 

.    197 

102,  103 

pendente  lite 

. 

,    103 

may  be  appointed  by  chancery  in  case  an  executor 

..  becomes  bankrupt  .  488 

when  husband  of  executrix,  is  abroad  358 

Receipt — for  a  legacy  .  329,  St  vid.  J/i/iend. 

executors  joining  in  a  .  483, 484 

effect  of  .  .484 

Recognizance  .  .  56.  263. 432 

definition  .    '•  .  271,272 

distinction  between,  and  a  bond  .  .     ib. 

■    how  authenticated  .  ...  .   272 

in  the  nature  of  a  statute  staple  272.  274,  275 

description  of  .  274,275 


INDEX.  605 

Recognizance — continued.  Page 

recognizance   and   statutes   payable    in  the  same 

order  .  .  .  .275 

not  yet  due  .     ,  .  .  275,  276 

contingent  ....  276 

not  enrolled,  how  considered  .  .  277 

Rectory,  lease  of  .  .  .  .146 

Refunding  of  legacies  .  .  .  .  .341 

Refusal  of  the  office  of  executor       .       43.  92,  93.  120,  121.  12S 
of  administrator  .  .120 

Registry  of  the  spiritual  court  .  58.  96,  97.  1 19.  492 

Register's  book  in  the  spiritual  court  .  78.  95 

Registering  probate  at  the  bank  .  .  255,256 

seamen's  wills  *  .  .  .60 

Registry  of  wills  affecting  lands  in  Yorkshire  or  Middlesex  246 
Relations — description  of,  under  a  will  .  .       >        300.  386 

Release  of  debts  by  will  .  .  .  .  308 

of  debts  by  executor         .   '  .  .424 

by  husband  of  executrix,  or  administratrix     242 
by  one  executor  .  .  359, 360 

by  one  executor  of  his  interest  to  his  co-exe- 
cutor .  .  .  .  360 
Relief — due  to  testator,  action  for                      .                     .  433 
due  from  testator,  action  for                   .                     .  459 
Remainder             .                  .                  .                  .•             165.214 
interest  vested  in  executor  by                 .              165,166 
when  not                      .                     .166 
Remainder-man — what  chattels  go  to               .             203,  etscq. 
not  entitled  to  emblements              204,  et  sec/. 
right  of,  to  heir-looms                  .            ..211 
Remedies — for  executor  or  administrator  at  law  254,  255,  256. 

431 
action  by,  where  cause  of,  arose  in  tes- 
tator's lifetime  .  157.431 
in  what  cases  not  maintain- 
able                .           *      160.  436 
where   cause  of,  arose  after 
testator's  death  162.437 
executor  may  sue  in  a  court  of  conscience  •  436 
may  hold  to  bail,  on  what  affidavit  .  438 


606  •  INDEX. 

Remedies — continued.  Page 

legal  remedy  of,  creditor  executor  refusing  to   act 

not  extinguished  ...  293 

action  not  maintainable  by  iufant  executor  -  445 

formerly  maintainable  by  infant  executor   after  the 

.age  of  seventeen  -  -  -     ib. 

husband  of  executrix  cannot  sue  without  her  -     ib. 

action  by  executor  durante  minoritatc  -     ib. 

co-executors  must  all  join  in  an  action  445,  446 

of  (heir  joining  where  infant  is  co-exe- 
cutor -  -  .  446 
in  action  by  co-executor  of  summons  and  severance     ib. 
when  on  judgment  recovered  by  two  executors  they 

pray  different  writs  of  execution  -  447 

action  by  executor  of  executor  .-  -     ib- 

action  by  administrator  .     -  -     ib. 

by  special  administrator  -  -   -  ib. 

by  joint  administrators  -  -  448 

where  either  party  dies  between  verdict   and  judg- 
ment -  ,       -  442 
after     the     assizes     com- 
menced, but  before  the    - 
trial           -  -     ib. 
judgment   in    such     cases 
how    and    when    enter- 
ed                -                       -  44-3 
revived     by    scire     facias 
in  what  form                   -     ib. 
where  either  party  dies  before  the  assizes,  the  suit 

is  abated  -  -  -  442 

scire  facias  by  executor  on  his  coming  of  age  on 
judgment  recovered  by  administrator  durante 
minoritutc  -  -  447,  448 

scire  facias  by  administrator  in  such  case   against 

the  bail         -  -  ...  448 

execution  in  such  case  on  the  judgment  -     ib. 

scire  facias  by  administrator  dc  bonis  non,  on  judg- 
ment recovered  by  executor  -  -     ib. 
if  executor  or  administrator  die  after  suing  out  ex- 


INDEX. 


607 


449 


ib. 


Remedies — continued.  Page 

ecution,  but  before  tbe  return  of  it,  administra- 
tor de  bonis  non  may  perfect  tbe  same  448,  449 

and  where  the  execution  was  on  a  judgment  by  de- 
fault .  ..  •  .450 

where  in  such  case  sheriff  returns  a  seizure  of  goods, 
but  that  they  remain  in  his  hands  pro  defectu 
emJitoru?n 

where  at  the  time  of  the  executor's  or  administra- 
tor's death  the  money  is  levied 

if  executor  bring  a  scire  facias  on  a  judgment  or  re- 
cognizance, and  after  judgment  die,  administra- 
tor de  bonis  non  must  bring  a  scire  facias  on  the 
final  judgment 

on  judgment  by  default  for  goods  taken  out  of  the 
executor's  or  administrator's  own  possession,  his 
administrator  shall  have  a  scire  facias  on  it,  and 
account  to  administrator  de  bonis  non 

right  of  executor  to  distrain,  in  what  cases      450,  et  seq. 

right  of  executor  of  executor  to  distrain  .  452 

executor  as  such  may  prove  a  debt  under  a  com 
mission  of  bankruptcy 

when  executor  may  take  out  a  commission  for  a 
debt  due  to  the  testator,  when  not 

executor  may  sign  bankrupt's  certificate 

but  not  both  as  executor  and  in  his  own  right 

executor  before  probate  may  commence  an  action 

may  arrest  a  debtor 

party  before  grant  of  administration  cannot  com 
mence  an  action 

may  file  a  bill  in  equity 

for  executor  or  administrator  in  equity     160.  454,  et 

for  executors  of  a  deceased  partner 

for  executors  in  regard  to  testator's  letters 

when  executor  may  institute  a  suit  against  credi 
tors  to  have  their  claims  ascertained  by  a  decree 
of  the  court 

when  executor  is  entitled  to  an  injunction  to  re 
strain  a  creditor  from  proceeding  against  him  at 


ib. 


450 


ib. 

ib. 
ib. 
453 
46 
47 

95 
ib. 

seq. 
454 
455 


ib. 


law 


455,456 


56 


608  IKDEX. 

Remedies — continued.  Page 

entitled  in  general  to  no  allowance  for  his  trouble       456 

when  entitled  to  commission  .  .  457 

when  fraudulent  assignment  of  a  term  by  a  former 
administrator,  shall  be  avoided  in  equity  by  a 
subsequent  .  .  •  458 

bill  of  revivor  by  executor  .  .  455 

by  subsequent  administrator  .  458 

where  one  of  two  executors  plaintiffs  in  equity 
may  be  severed  .  .-  •  457 

suit  not  abated  by  the  death  of  a  co-executor 

after  executorship  of  temporary  executor,  a  subse- 
quent one  may  maintain  a  suit  without  another 
probate         .  .  .  457,  458 

executor  come  of  age  may  continue  the  suit  of 
administrator  durante  jninoritate,  by  a  supple- 
mental bill  .  •  .458 

at  law  against  executor  or  administrator  where 
cause  of  action  arose  before  testator's  death  .  45y 

where  exist,  where  not       .  .   285.  460,  et  seq. 

against  executor  or  administrator  where  cause  of 
action  arose  subsequent  to  testator's  death  .  462 

for  rent  due  before,  and  after  that  event  278.  281 

to  what  action  executor  not  liable  on  account  of  the 
cause  .  .  460,461,462 

on  account  of  the  form  .  .461 

by  scire  facias  .  265,  266,  267.  277 

against  an  executor  come  of  age,  by  scire  facias 
on  judgment  recovered  against  the  administrator 
durante  minoritate  .  .  .  407 

scire  facias  against  executor,  when  defendant  dies 
after  final  judgment,  and  before  execution  .  469 

when  writ  of  fieri  facias  is  tested  before  defend- 
ant's death,  but  not  delivered  to  sheriff  till  after 
it  .  •  •     *'*. 

scire  facias  on  a.  judgment  against  an  executor  or 
administrator  .  .  .     ib. 

return  nulla  bona,  or  nulla   bona  and    a  devastavit 

469,  470 

proceeding  on  either  of  such  returns  .  470 


INDEX.  «>(V.J 

Remedies*— continued.  Page 

judgment  of  assets  guando  acciderint  -  -  479 

scire  facias  on  a  judgment  of  assets  guando  accide- 

.     rint  -  -  -  -  -  -     ib. 

action  of  debt  on  a  judgment  of  assets  guando  acci- 

derint  suggesting  at  devastavit  -  -     ib. 

against  administrator  on  administration-bond     495,  496 
how  executor  may  make  himself  personally  respon- 
sible -  '  -  463,  464 
cannot  be  sued  at  law  for  a  legacy     -  465, 

466 
not  liable  to  be  sued  in  a  court  of  con- 
science     .  -  -        466,  467 
•  not  in  general  held  to  bail  -  467 
in  what  case  he  may  be  -     ib. 
infant  executor  not  liable  to  be  sued      471 
limited  executor  may  be  sued              -     ib. 
in  action  against  wife  executrix,  hus- 
band must  be  joined             -             -     ib. 
on  judgment  against  husband  and  wife 
executrix,  if  she  survive,  not  liable 
to  action  of  debt  suggesting  a  devas 
tavit  by  the  husband            -             -     ib. 
where  co-executors  are  defendants         -                471,472 
where  some  of  them   are  in- 
fants             -              :_             -  472 
how  they  must  appear        ib. 
one  executor  not  liable  for  the  devastavit  of  co-exe- 
cutor         -             -             -             -             -             -     ib. 

igainst  executor  of  executor  on  a  devastavit  by  the 
hitter  -  -  -  ...  .  473 

actions  against  limited  administrator  -       474,  475 

ad  minis  trator  durante  minaritatc  having  wasted  the 
assets,  liable  to  the  executor  on  his  coming  of 
age,  but  not  after  that  period  to  a  creditor  -   475 

executor  of  a  deceased  partner  and  the  survivor 
cannot  be  jointly  sued  for  a  debt  due  from  the 
partnership  -  ib 

distress  against  executor  of  tenant  for  life,  or  for 
years  -  -  -  -  -  -    ib. 


610  INDEX. 

Remedies — continued.  Page- 

remedy  for  the  assets  in  case  of  a  bankrupt  execu- 
tor -  •    -  -  -  -  483 
by  apprentice  against  executor  of  the  master  for  a 
debt  where  destroyed  by  the  act  of  the  party        -  348 
where  suspended  only  by  the  act  of 

the  party  ...  349 

where  obligor  of  bond  administers  to 
obligee  and  dies,  creditor  and  ad- 
ministrator de  bonis  non  of  obligee 
may  sue  executor  of  obligor  -     ib. 

foreign   attachment,  executors  and   administrators 
within  the  custom  of,  in  what  cases  -  -  478 

in  what  not  -        478,  479 

against  executor  or  administrator  in  equity  -  479 

bill  of  revivor  against  executor         ...     ib. 
bill  by  legatees  or  parties  in  distribution  479,  480 

executor  liable  for  interest,  in  what  cases  480,  48 1 

if  he  compound   debts  due  from  testator, 

shall  not  be  entitled  to  the  benefit  -  481 

in  what  cases  not  liable  in  consequence 

of  lending  or  paying  money        -  -     ib. 

generally  liable  for  compounding  or   re- 
leasing a  debt,  when  not  -         481,  482 
may  be  called  upon  in  equity  to  secure  a 
legacy  payable  at  a  future  time  -  482 
to  secure  an  annuity                 -  -     ib. 
against  executors  joining  in  a  receipt            -        483,484 
an  executor  not  admitting  assets  liable  to  account, 

though  co-executor  admit  them  -  -  486 

when  co-executor  not  liable  for  the  administration 

of  the  property      -  -  -  -  -     ib. 

against  executor  or  administrator  in  the  ecclesiasti- 
cal court  -  -  -'  -  4S9 
at  the  suit  of  legatees  or  parties  in  distribu- 
tion              ....    489 }  ct  8egt 
at  the  promotion  of  a 'creditor.           -  -  495 
when  legatees  may  sue  executor  in  chancery 
and  in  the  prerogative  court  at  the  same 
time             -  496 


INDEX.  611 

Remedies — against,  executor — continued.  Page 

if  temporal  matter   be   pleaded,   spiritual 
court  must  proceed   according  to  com- 
mon law  -  494 
specialty  creditor  may  resort  against  heir 
and  devisee,  without  suing  the  executor 
of  debtor           -                      -                      -  4 1 1 
against  executor  de  son  tort            -                     -  473 
may  be  sued  with  a  lawful  executor,  but 

not  with  a  lawful  administrator  -     ib. 

how  far  liable  -         473,  47 1 

executor  of,  liable  for  the  devastavit,  of  - 

the  latter  -  -  474 

executor  de  son  tort  of,  not  liable  for  the 

devastavit  of  the  latter  -     ib. 

may  be  sued  for  a  legacy   in    the 

ecclesiastical  court  -  496 

Rent  140.  143,  144,  145.  157.  159.  217.  224.  236.  239 

service  ....  4.50 

charge  -  -  -•  -     ib, 

seek  -  ib, 

fee -farm  -  -  -  -     ib. 

.  due  to  the  crown  -  -  -  261 

to  what,  heir  is  entitled  -  -  176,177,178 

where  heir  is  entitled  to  -  -   138 

to  what,  executor  is  entitled  -  -   136 

where  executor  is  entitled  -  -   179 

apportionment  of,  in  favour  of  executor  of  tenant  for 

life  -  -  208,  209.  436 

a  debt  due  by  specialty  -  -       278.  281.  459 

reserved  by  parol  lease  •   -  -  279.  460 

after  determination  of  the  lease  -  -  279 

left  in  arrear  by  testator         -  -  -     ib, 

accruing  after  his  death         -  -  -     ib. 

when  the  profits  of  the  land  exceed  the   amount  of 

279,280 

when  the  profits  are  less  than  the  -  280 

avowry  for  -  -  -  4S.  424 

as  incident  to  a  reversion  foi  years  •  437 


612  INDEX. 

Kent — continued.  Page 

reserved  on  a  lease  for  years,  query  whether  executor 
can  distrain  for  .  .  451,452 

Rent-charge — executor  of  grantee  of,  for  term  of  years,  if  he 

so  long  live,  cannot  distrain  for  the  same         452 
an  advancement  .    .  .  .  377 

Replevin,  action  of  .  .        159.161.437 

Representation,  not  admitted  among  collaterals  aflcr  intes- 
tate's brothers'  and  sisters'  children, 

3<  2.  382, 383 

Republication  of  a  former   will  .  .     28 

Requisition — in  regard  to  seamen's  wills         .  .     63 

in  regard  to  administration  to  seamen  .    1 1 J 

to  bishop  or  archbishop  in  England  65.  94 

to  the  magistrates  in  Scotland  .  .65 

in  the  West  Indies  .     ib. 

Residue  .  .  .  .312 

undisposed  of  .  .  .35  1 

parol  evidence  respecting    .  .  355 

interest  upon  .  .  .   324 

interest  of  executor  in  .  .  351,  et  scq. 

of  widow  executrix  in  .  .353 

of  limited  executor  in  .  .  354 

where  husband  and    wife  executors  shall  be  excluded 

from  .  .  .  .359 

when  co-executors  shall  be  entitled  to,  when  not     359.  363 

co-executors  take  as  joint-tenants  .  .   363 

Residuary  legatee  .  .  .  342 

where  there  is  no  present  residue  100.  1 17.  122 

death  of,  before  the  surplus  is  ascertained  .   342 

shall  not  compel  the  other  legatees  to  abate  34  1 

shall  not  suffer  alone  in  case  of  a  devasta\it  ib. 

infant  executor  .  .  12  1 

bankrupt  executor  .  .  .   48S 

linen — by  executor  of  a  debt  due  to  him  295, et  seq. 

by  husband  of  executrix  .  .  359 

by  one  ol*  two  executors  how  far  allowable  .   36  1 

for  his  debt  not  in  general  allowed  to  execntoi    dc 

son  tort  ....   3G6 

when  entitled  thereto  uudcr  the  statute  .     ib. 


INDEX.  613 

Retainer — continued.  Page 

for  debt  by  limited  administrator  ,  .  405 

Reversion                      .  377 

legacy  charged  on  .  .  324 

Reversioner                  .  .  206.  2 1  I 

Review,  commission  of                    .  .  74,  75 

Revocation  of  will      .                      .  .  14,  etseq. 
Roman  catholics         ....     35 

Saffron  .  .  .  150.194 

Saintfoin  .  .  •  .150 

Sale  of  the  deceased's  effects         .  .  .     40 

by  grantee  of  letters  ad  colligen- 
dum .  .107 
by  executor                .                256,  257 
though  specifically  bequeathed  256 
in..satisfaction  of  his  own  debt  296 
by  administrator  where  adminis- 
tration is  void          .  .128 
where  voidable                     96.  129 
to  executor  by  sheriff  under  a  fieri  facias  .  239 
of  perishable  articles               .                        40.  247.  404.  428 
of  leases  by  limited  administrator              .                      .  405 
of  goods  at  an  undervalue                            .  .  427 
of  land                   ....   364 
of  land  devised  to  executor  for  that  purpose  .413 
Satisfaction                  .                      .                      .                      .336 
Scire  facias                    .                       .                        220.265,266,267 
on  a  judgment                      .                      .         202.265.407 
on  a  recognizance                .                     .  .  277 
execution  by,  where  testator    plaintiff    died    after 

final  judgment,  and  before  execution  441,442 

effect  of  testator's  or  intestate's  death  after   a  fieri 
facias  sued  out  .  .  .  442 

after  the  goods  are  seized  .  .     ib. 

where  either  party  dies  after  interlocutory  judg- 
ment, and   before   execution  of   the  writ  of  in- 
quiry .  .  .  443,  444 
the  form  of  the  scire  facias  in  such  case  .  444 
judgment  in  such  case,  how  entered                            .     ib. 


614 


INDEX. 


Scire  facias — continued.  Page 

by  executor  on  his  coming  of  age  on  a  judgment 
recovered  by  administrator  durante  minoritate  447,  448 

by  administrator  in  such  case  against  the  bail  .  448 

by  administrator  de  bonis  non  .  .  480 

when  it  lies  .  .     ib. 

when  not  .  .  449 

on  judgment  recovered  by  executor  or  administra- 
tor ....     ib. 

by  administrator  of  executor  or  administrator  on  a 
judgment  by  default  for  goods  taken  out  of  the 
possession  of  the  latter  -  .  450 

where  defendant  dies  after  interlocutory  and  before 
final  judgment,  two  writs  of  scire  facias  must 
be  sued  out  .  .  .  444 

when  respectively        .  .  .     ib. 

against  executor  where  defendant  dies  after  final 
judgment,  and  before  execution         .  .  469 

on  a  judgment  against  executor  or  administrator         ib. 

return  nulla  bona  ;  or  nulla  bona  and  a  devastavit    469, 

470 

proceeding  on  either  of  such  returns  .  470 

on  a  judgment  of  assets  quando  acciderint  .     ib. 

against  executor  of  an  executor  on  a  judgment 
against  the  latter,  in  an  action  of  debt  suggest- 
ing a  devastavit  on  a  judgment  committed  by 
him  in  the  lifetime  of  plaintiff's  testator  .  473 


on  a  judgment  where 

necessai 

y  agaii 

ist  an 

execu- 

tor  of  an  executor 

ib. 

Scire  fieri,  inquiry 

. 

470 

Scotland,  leasehold  estate  in 

. 

144 

Scriptures,  denial  of 

. 

. 

36 

Seal  of  the  ordinary 

. 

46.  58 

.   76 

Seaman 

. 

4,  5 

Seamen's  wages 

. 

60 

will  of 

. 

. 

ib. 

administration  to 

. 

. 

109 

See,  vacancy  of 

. 

67 

'.  94 

Sequestration  of  the  deceased 

s  effects 

• 

65 

Servant 

, 

151, 

152 

INDEX.  Ol5 

Page 
Settlement  gained  by  executor  ....   146 

Settlement  on  a  child,  either  voluntary,  or  for  a  good  consi- 
deration, an  advancement  Jiro  tanto  .  377 
Sheriff,  action  against       .              .              159.161.435.437,438 
action  against  executor  for  money  levied  by  testator  as  460 
Sheep,  wool  of                       .             •                      .'  •'             •    166 
Ship  at  sea               .               .             .             .             •  .153 

delivery  ot,  by  bill  of  sale  .  .  .  234 

Signature  of  a  will  .  .  .  2.  15 

of  a  codicil  .  .  .  .  6 

Simple  contract,  debts  by  157.219.261.267.  285,  286.  433.437. 

459,460.462,463 
bills  .  .  •  286.460 

notes         .  ...  .     ib. 

verbal  promises  .  .     ib. 

promises  express  .  .     ib. 

implied  .  .     ib. 

collateral  .  .  460 

due  to  the  king  .  259.286 

wages  of  servants    •  .  .  286 

of  labourers  .  .  .     ib. 

apprentice  fee  received  by  testator     ib. 
where  by  the  custom  of  London 

cqu#  to  a  debt  by  specialty         282 
judgment  not  docquetted  on  a  lev- 
el with  .  .  .268 
interest  on  286 
Sister  of  the  half-blood          .             .             .             .             .91 

Skirrets         .  .  .  .  .  .  -194 

Slave — his  right  to  a  legacy  ....  233 

Soldiers  in  actual  service,  will  of  .  .       4 

Son  .  .  „  .  •  •  .87 

of  intestate's  sister         .....  383 

of  intestate's  aunt  .  .  •  •  384 

Special  occupant  .  .  .  •  140.  179 

plea  by  executor  .  267.280,281,282,283.298 

when  necessary  .         267.280,281 

Specialty— debts  by  .  .  .         278,  et  seg.  459 

not  yet  due         .  .  •  ,281 


61G  INDEX. 

Specialty— debts  by — continued.  Page 

contingent                  -  -  -  282 

where  the  contingency  has 

taken  place  >       .  ib. 

interest  on               -             -  286,  287 

Squirrels             •       -             -             -             -  -  -  248 

Statute  20  Hen.  3.  c.  2.                     -             -  -  -  205 

13  Ed.  I.e.  19.                        -  -  -     82 

13  Ed.  1.  Westminster  2,  c.  23.  -  -  433 

de  mercatoribus,  13  Ed.  1.                -  -  -  272 

4  Ed.  3.  c.  7.              -             -             -  -  -  433 

25  Ed.  3.c.  5.            -              -              -  -  -  447 

27  Ed.  3.                     -              -              -  -  -  273 

21  Hen.  8.  c.  5.  20.  41.  65.  73.  83,  84.  97.  123.  247. 

249.  253.  412 

23  Hen.  8.  c.  6.  -               -              -              -  -  274 

24  Hen.  8.  c.  12.  '   -               -  -     73 

25  Hen.  8.  c.  19.  -               -              -  74 

26  Hen.  8.  c.  1.  -                -                -  -     75 

28  Hen.  8.  c.  11.  -  -  -  -  208 
32  Hen.  8.  c.  1.  -  -  -  2 
32  Hen.  8.  c.  6.  -              -              -  -      13 

32  Hen.  8.  c.  37.  -  -     217.224.450 

33  Hen.  8.  c.  39.  -  -  -  259 

34  8c  35  Hen.  8.  c.  5.     *  -  -  9,  10 

2  &  3  Ed.  6.  c.  13.  *  -  -  "-  -  434 
1  Eliz.  c.  1.  -  -  -  -  -  75 
43  Eliz.  c.  8.  -  -  -  -  -  39 
92  canon,  Jac.  1.  51,52 

3  Jac.  1.  c.  5.  -  -  -  -  -  33 
3  Car.  1.  c.  2.  -  -.  -  -  -  ib. 
17  Car.  2.  C.  8.  -              -  -  265.442.448 

22  St  23  Car.  2.  c.  10.  -  85.97.247.370 
25  Car.  2.  c.  2.                      '  -  -  -  -     33 

29  Car.  2.  c.  3.             2,4.  38.  59.  85.  140.  143.  169.  373 

410.  415.  464 
*  30  Car.  2.  stat.  2.  c.  1.         -  -  -  -     33 

30  Car.  2.  c.  3.  -  -  -  -  262 
30  Car.  2.  c.  7.  ....  474 
1  Jac.  2.  c.  17.                       -             -      370.382.390.493 


INDEX.  617 

Statutes — continued.  Page 

3  W.  8c  M.  c.  14.         -  -  411 

4  8c  5  W.  8c  M.  c.  2.  -  388 
4  £c  5  W.  8c  M.  c.  20.  268 

4  8c  5  W.  &  M.  c.  24.  430.  473,  474 

5  W.  Sc  M.  c.  20.  -  -  -  -  256 
5  W.  3.  c.  21.               -  -                  -                          4 

7  Sc  8  W.  3.  c.  38.  -                  -             388.  403 

8  Sc  9  W.  3.  c.  11.  -                   -              265.  443 

9  Sc  10  W.  3.  C.  32.       •  -                   -                   -      33 

13  W.  3.  c.  6.  -  -  -  -  ib. 
2  Sc  3  Ann.  c.  5.  -                           .         -  388 

4  8c  5  Ann.  c.  16.  -                   -             4.  54.56 

8  Ann.  c.  14.                -  -                                    -  475 

9  Ann.  c.  10.  -  -  -  -  262 
1  Geo.  1.  stat.  2.  c.  13.  -     •             -                  -     33 

5  Geo.   I.  c.  27.             -  -                                      13.  34 

1  1  Geo.  1.  c.  18.  -                  -            38S.  400 

2  Geo.  2.  c.  23.  -  -  411 
5  Geo.  2.  c.  7.  -  -  -  417 
5  Geo.  2.  c.  30.  *  -  221 
1  1  Geo.  2.  c.  19.          -  -                  -             i§8.  436 

14  Geo.  2.  c.  20.  -  140 
17  Geo.  2.  c.  38.  -  -  -  262 
19  Geo.  2.  c.  37.  -  -  -  45  3 
19  Geo.  3.  c.  70.  -  -  -  264 
26  Geo.  3.  c.  63.  ...  5.  60 
31  Geo.  3.  c.  32.          - 


■3  J 


32  Geo.  3.  c.  34.          -  -                  -           5.  60.  109 

32  Geo.  3.  c.  67.          -  -                                  64.  1  13 

34  Geo.  3.  c.  52.          -  -                     318.  and  J/i/t. 

37  Geo.  3.  c.  90.          -  -                    43.  66.  96.  24  6 

38  Geo.  3.  c.  87.  31.  100,101.  104.  121.312. 

356.  406.  408.  445.  471 

44  Geo.  3.  c.  98.       •   -  .  -                  -                  Jijiji. 

45  Geo.  3.  c.  28.  -  56.  263.  432.  J/1/1. 
47  Geo.  3.  c.  74.  -  .  -  -  417 
55  Geo.  3.  c.  60.           -  6.  60.  109 

Statute  merchant  131.  260.  272 
description  of 


618  .'      INDEX. 

Statute  merchant — continued.  *  I'agc 

estate  by      -  139.212 

Statute  staple        ....   134.260.273 
description  of  ...  273 

estate  by  -  -  -  139.  212 

not  yet  due  ....  275 

contingent  ...  275,  276 

Successor — what  chattels  go  to  -  -  -  201 

what  not  .--  -     ib. 

Summons   and  severance   in  an  action  in  the  names  of  co- 
executors  ...  -  446 
writ  not  abated  by  the  death  of  the  party  severed     ib. 
nor  if  he  live  till  judgment  can  he  sue  out 
execution                  -  ib. 
Supplemental  bill  by  executor  come  of  age  after  adminis- 
tration committed  durante  minoritatt             -                  -  358 
Surrender  of  lease  by  executor             -  -              -                 -   142 
by  husband  of  executrix  or  administratrix  242 
Survivorship,  right  of           -                  -                       15  5.  163.  454 
exists  not  in  regard  to  partners  in 
trade,  or  husbandry          155.  163.454 
Surviving  executor                  -                 -                  -            114.363 
administrator        ...           114.408 
Suspension  of  bishop  or  archbishop                                        67.  94 
Swans                       -                  -                                    -                  -   192 
Syndics,  where  a  corporation  is  executor                              -     33 

Tables  and  benches  long  fixed  -  -  -   197 

Tables  modern,  and  fixed  -  -   198 

Tapestry  -  -  -  -  -     ib. 

Tenancy  from  year  to  year  -  -  -   141 

Tenant  for  life,  executor  of  -  -  206 

Term  for  years  -  140.179.4  10 

vested  in  executor  by  his  entry  before  probate   1 40 

cannot  be  waived  by  executor  113.  279 

unless  where  there  are  not  assets  to  pay 

the  rent  -  -  143,  144 

what  he  is  to  do  where  there  are  assets 
to  pay  pent,  but  not  \'oi  the  whole  term    1 1 1 
in  an  advowson  -   '61 


I^DEX.  619 

Term  for  years — continued.  Page 

in  trust  to  pay  debts,  and  then   to  attend  the 

inheritance  -  -  -178 

vested  in  a  trustee  to  attend  the  inheritance 

410.  427 
grant  or  surrender  of,  by  one  of  several  exe- 
cutors -  -  -  360 
reversion  of              -                     -  -   141 
Timber                         -                     -                     -  -   193 
Tithes                         -                     -                     -                 M>8.  190 
where  executor  is  considered  as  possessed  of       145,  146 
action  for  not  setting  out                         -                  158.434 
Tombstone                   -                      -                      -  -   199 
Trade — not  generally  transmissible  to  executor  -   166 
where  he  may  carry  it  on                      166.  486 
where  the  testator  directs  the  residue  of  his  estate  to 

be  employed  in  carrying  on  his         -  166.  486 

where  the  testator  directs  part  of  his  assets  to  be  so 
employed  -  -  166.  487 

Trader — what  acts  an  executor  of,  may  perform  without 

making  himself  one  -  487,488 

real  estate  liable  to  debts  -  -  417 

Traitor  -  -  -  12.  35.  93 

Transmutation  of  the  property  in  favour  of  the  executor  238.  240 

Trees  149.  160.  193,  194,  195,  196.  206,  207.  436 

branches  of,  lopped  ...   149 

timber  -  -  145.193.195,196.207 

not  timber         -  -  145.  193.  206 

Trespass,  action  of  -  -  158.433.437 

by  executor  lies  not  for  injury  to  testator's 

person,  or  freehold  -  160.436 

distinction    between,   and  that  of  trover 
brought   against   executor  de  sou  tort 

365,  366 
Trinity,  denial  of  -  -  -     36 

Trover,  action  of  -  365.  434 

Trust — shall  never  fail  for  want  of  a  trustee  -  36? 

whether  executor  of  an  executor  may  or  not  execute 
at  law  a  power  of  selling  land  given  to  the  first  ex- 
ecutor, he  is  bound  in  equify  to  execute  it  -     ib, 


620  INDEX. 

Trust — continued.  Paee 

bond  given  to  testator  in  -  153?  154 

Trust-term.  -  -  -  -  218 

Trust  estate  descended  to  heir  -  -415 

Trustee — where  executor  is,  of  the  residue  351,  352 

where  co-executor  shall  be  ^  361,  et  seq. 

where  wife's  representative  is,  for  husband's  repre- 
sentative -  -  -   116 
and  executor,  devisees  to  sell  land,  former  distinction 
between                           -                       -        412,  413,  414 
or  guardian  shall  not  change  the  nature  of  the  estate   1 82, 

183 

may  by  a  decree  in  equity  -  -  183 

Turnips  -  -  -  150.  194 

Vats  for  dyers  -  -  -  -   198 

Venditioni  exponas,  writ  of,  sued  out  by  administrator  de 

bonis  non  -  -  -  -  449 

Ventre  sa  mere,  child  in  -  -  34.  300 

Vicar  -  -  -  -  201 

Uncle  -  -  -  -     90 

of  intestate  ....  334 

Usurer  -  -  -  -     13 

Wages  of  servants  ...  286 

of  labourers  ...     j0. 

Wainscots  -  -  -  -   197 

Wales,  custom  of  ...  403 

Waste — tenant  for  life,  or  years  without  impeachment  of-  207 
no  action  lies  for,  either  by  heir  or  executor     432,  433 
Widow — grant  of  administration  to  -  83.86 

when  not  one  of  the  next  of  kin  under  a  will         -  3S6 
Widow's  chamber — by  the  custom  of  London  -  39  1 

compensation  for,  to  what  amount  -  ib. 
analogous  to  her  right  in  paraphernalia  -  ib. 
cannot  be  claimed   to  the   prejudice  of 

creditors       -  -  -     ib. 

and  ornaments  by  the  custom  of  York  400, 401 

Will— definition  of  -  -  -       1 

of  lands  freehold  -   1,  2.  2S.  69,  70 


INDEX.  621 

Wi\\— continued.  Page 

31 

7 
69 

7 

ib. 
ib. 
ib. 
ib. 
ib. 


of  lands  copyhold 
of  customary  freehold 

of  personal  property  .  •  2, 

of  terms  for  years 
in  gross 

in  trust  to  attend  the  inheritance 
of  transmitting  terms  hy 
of  creating  terms  hy 
of  money  out  of  land 

of  money  covenanted  to  he  laid  out  in  land 
of  a  mixed  nature 
written 
nuncupative  .  •  3) 

of  soldiers  in  actual  service 

not  permitted  to  sailors  or  marines 
of  English  seamen  and  marines 
of  Irish  seamen  and  marines 
avoided  by  incapacity  of  the  party 

mental  disability 

infancy,  within  what  age  in  males 

in  females 

madness 

idiocy 

age 

distemper 

drunkenness 

having  been  born  blind  and  deaf 

imprisonment  or  captivity,  how  far 

coverture  .  •  9,  10. 242 

where  partially  avoided  by       242,  243 

crimes  .  •  .12 

treason  from    conviction   and   attainder,  or 
outlawry  .  •  •     *&. 

felony  from    conviction    and    attainder,   or 
outlawry  .  •  •     *"• 

crimes  as  it  respects  personal  estate  only  ib. 

treason  after  conviction  .  •     *»• 

felony  after  conviction  .  •     7"* 

felo  de  se 


70 
2 

59 
4 
5 
5.   60 

64 
9 

ib. 

'ib. 

ib. 

ib. 

ib. 

ib. 

ib. 

ib. 

ib. 

ib. 


ib 


622  INDEX. 

Will—avoided  by — 'continued.  Page 

felony  not  capital  .  .12 

ib. 
14 
ib. 
17 
15 
ib. 
ib. 
ib. 
ib. 

18 
ib. 

19 
ib. 

18 


outlawry  in  civil  cases 
by  cancelling 

by  revocation  .  .    . 

by  another  will  .  •  1 

by  a  codicil 

where  either  relates  to  real  property 

by  other  writing 

relative  to  real  property 

express 

implied 

marriage  of  man,  and  birth  of  a  child 

marriage  alone  of  woman 

not  by  birth  of  a  child  merely 

such  presumption  may  be  rebutted 


in  the  nature  of  ademption  .  19,  ct  seq. 

revocation  in  equity  .  .  .26 

not  avoided  by  the  testator's  subsequent  insanity         .       9 
by  coverture,  if  made  with  the  husband's 
licence,  and  such  licence  extends  to  the 
produce,  as  well  as  the  principal  8.   10 

how  it  operates  .  10.  85, 86 

if  he  be  banished  .  .10 

if  property,  to  the  wife's  separate  use       .     1 1 
as  executrix  .  11.  242 

of  the  queen  .  .11 

in  respect  to  gavelkind  land  by  felony       .  .12 

persons  capable  of  making, 

usurers  .  .  .     ib. 

libellers  .  .  .     ib. 

persons  excommunicated,  semb.  .     ib. 

alien  friend  of  chattels  personal,  and  of 
certain  chattels  .  .     ib. 

alien  enemy  of  the  same,  if  resident  here 
with  the  king's  licence         .  .     ib. 

express        .  .     ib. 

implied       .  .     ib. 

incapable  of  making, 

British  artificers  going  out  of  the  realm 


INDEX. 


623 


Will— persons  incapable  of  making — continued.  Page 

to  exercise  or  teach  their  trades 
abroad,  or  so  trading,  who  shall 
not  return  within  six  months  after 
warning  -  -     13 

alien  enemy  -  -     12 

cannot  be  repealed  or  altered  by  parol,  or  will  nuncu- 
pative        -  -  -  16.  59 
omission  in  a,  may  be  supplied  by  nuncupative  codicil      6 
cannot  be  made  irrevocable       .              -  13,14 
republication  of  a  former,  shall  re-establish  it  -  28 

what  shall  be  28,  29 

of  a  woman  afterwards  marrying,   not  revived  by 

husband's  death  -  -  -     2 1 

lost  -  -  -  71.77 

illegible  by  accident  -  -  .  -     71 

suppressed  -  -  120.  128 

unknown  -  -  -  -   120 

of  a  party  who  has  been  long  absent  -     70 

transmission  of  a  copy  of,  from  Scotland  -     ib. 

from  Ireland  -     71 

from  East  or  West  Indies     ib. 

of  property  in  the  plantations  -  71,72 

made  in  a  foreign  country  -  -     72 

in  a  foreign  language  -  -     ib. 

memorial  and  registry  of,  affecting  lands  in  Yorkshire 

or  Middlesex  -  -  -  246 

Windows  -  -  "  -   197 

Window  shutters  -  -  .  -     ib- 

Woollen,  forfeiture  for  not  burying  in  -  261,  262 

York,  custom  of  the  province  of  -.  4.00,  etaeq. 

where  it  shall  be  controlled  by  that  of  London  402 
custom  of,  and  of  London  in  the  main  agree  402, 

403 


THE  END, 


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